Emoluments Clauses: Investigations Into Trump's Businesses Spark Questions

Congressional investigations, including an impeachment inquiry, into President Donald Trump have expanded in a new—and unprecedented—direction.

As part of deciding whether to recommend articles of impeachment, Democrats on the House Judiciary Committee announced on September 6 that they were probing Trump’s announcement that next year’s G7 would be held at a Trump-owned resort in Doral, Fla., along with Vice President Mike Pence’s taxpayer-funded stay at a Trump-owned golf club in Doonbeg, Ireland. The charges represent a new front in the impeachment investigation stemming from obstruction-of-justice allegations from the Mueller Report on Russian interference in the 2016 election.

Separately, following a Politico report, the House Oversight Committee revealed on September 6 it was investigating military stays at a Trump-owned property in Turnberry, Scotland, and substantial increases in military refueling at a nearby airport since Trump won the election.

In both cases, Democrats charge that Trump may have violated provisions in the U.S. Constitution—the foreign and domestic emoluments clauses. These clauses prohibit the president from receiving objects of value from foreign officials without congressional consent and from receiving benefits other than a fixed salary from federal, state, and local officials. Hotel stays of domestic and foreign officials, they argue, could constitute a non-salaried benefit to the president through enriching his businesses, which he has not divested from.

“Potential violations of the Foreign and Domestic Emoluments Clauses of the Constitution are of significant interest and grave concern to the Committee as it considers whether to recommend articles of impeachment,” wrote Chairman Jerry Nadler (D-N.Y.) and Rep. Steve Cohen (D-Tenn.) in a letter to the White House.

Several legal experts told Fortune that the recent news developments regarding Trump-owned properties in Florida, Ireland, and Scotland ran afoul of the domestic and foreign emoluments clauses and constituted impeachable offenses.

Regarding Pence’s stay, “the payments to the Trump Organization and indirectly to Trump may constitute a violation of the domestic emoluments clause, as may the Air Force personnel staying at the Scottish resort,” said Kathleen Clark, a law professor at Washington University in St. Louis and expert on government ethics. She added that the potential hosting of the G7 at a Trump-owned resort in Florida would be either a violation of the domestic or foreign emoluments clause, depending upon whether foreign governments paid for their stay there.

Larry Noble, former general counsel to the Federal Election Commission and a CNN contributor, said, “What constitutes a ‘high crime and misdemeanor’ is ultimately up to the House and Senate. I find it hard to believe believe that the phrase doesn’t include openly and willfully violating constitutional prohibitions on using your office to enrich yourself by directing or encouraging the US or foreign governments to use your businesses.”

However, Josh Blackman of the South Texas College of Law in Houston said that the word “emoluments” as used in the Constitution does not encompass the sorts of business transactions with the Trump Organization, and thus did not violate the emoluments clauses, but said the stays were problematic.

“The president should not be recommending his own businesses for various government business. As a policy matter, it smacks of self-dealing,” he told Fortune. “But there are lots of bad business dealings that do not violate the Constitution. There are lots of bad business arrangements that are not high crimes and misdemeanors, and I don’t think that these sorts of activities would justify a finding of impeachment.”

Prior to 2016, the emoluments clauses remained fairly obscure in the Constitution. They were not subjects of significant litigation.

However, all that changed since Trump’s election.

Multiple lawsuits against Trump have charged that the president has accepted emoluments from foreign governments through foreign officials staying at the hotels he owns. The attorneys general of the District of Columbia and Maryland sued Trump over foreign emolument clause violations and had their case dismissed in July over a lack of standing.

The liberal-leaning watchdog group, Citizens for Responsibility and Ethics in Washington, has also sued Trump in the Southern District of New York, and is awaiting appeal after their case was also dismissed over a lack of standing. Senator Richard Blumenthal (D-Conn.) and nearly 200 other members of Congress have sued Trump as well; their case remains before D.C. District Court.

With these cases either dismissed or moving slowly through the courts, Congress has the capability to handle emoluments questions much faster. Experts said that the matter was now up to Congress to decide.

“This should not be a matter for the courts. Congress should be taking charge of this. It’s embarrassing that members of Congress went to the courts first,” said Blackman, who has filed amicus briefs in Trump litigation advancing the view that the president is not subject to the foreign emoluments clause.

Noble, the former FEC director, said, “The courts did not say the president did not violate the emoluments clauses, only that the states and members of congress individually could not bring the claims,” he said. “While I disagree with the courts, the message that this is up to Congress is clear.”