Orange Gasbag’s soft despotism: Emoluments Clause & Mrs. Claus


By ann summers


So apparently Executive Privilege is simply a version of Absolute Power and Narcissus-elect is now in charge. Spoils system rules are simple and seem to have returned in fullest force with the Orange Gasbag’s soft despotism.

Apparently Trump and his spawn cannot and should not be denied profits of any kind, even as he tarnishes his present and future brands when he begins his first war and/or kills his first human using his power as Capitalist/Commander-in-Chief.

Like Trump even knows about the differences among protocol and hospitality since he clearly doesn’t understand the Constitution or his obligations to it.

The Foreign Emoluments Clause in Article I, section 9, provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept of [sic] any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

I began paying attention to this Clause because of controversy about contributions to the Clinton Foundation made by foreign governments while Hillary Clinton was Secretary of State. If the concern underlying the Clause is the possibility of an “Office[r] of Profit or Trust” having divided loyalties — holding a U.S. office while getting goodies from another government — does the concern disappear if a “present” or “emolument” is paid by a foreign state to a foundation in which an officer has a significant say, at least indirectly, rather than to the officer personally? I didn’t think so, but who knows? The founders were thinking about foundational issues, but they obviously weren’t thinking about foundations.


The issues have, if anything, intensified with the election of Donald Trump, and the Foreign Emoluments Clause has become a hot topic, as evidenced by Professor Zephyr Teachout’s op-ed [and Professor Seth Barrett Tillman’s counterpoint] in yesterday’s New York Times. Mr. Trump has business holdings around the world, and his enterprises inevitably deal with foreign governments and entities that are arms of foreign governments. Given that the presidency is clearly an “Office of Trust or Profit,” will those business dealings be a problem if they continue, assuming that Congress doesn’t give its okay? (Congress has given consent in some cases, such as for presents of trivial value, when influence peddling doesn’t seem to be involved.)

The answer is again an unequivocal Who knows? Some of the key questions are as follows:

1. Whether a corporation created by a foreign state ought to be treated as the foreign state for these purposes. The founders wouldn’t have been contemplating such an arrangement, but the answer, if the Clause is going to have any effect, ought to be yes.

2. Is an apparently arms-length business deal, with value going in both directions, between an entity connected to the president and an enterprise controlled by a foreign state potentially covered by the Clause? In such a case no “present” seems to be involved, unless the terms aren’t in fact arms-length. But, even so, the term “emoluments” picks up some arms-length arrangements, at a minimum including compensation for services provided to the foreign government. (An American official’s being paid for actual services is clearly more problematic than getting a “present” from the government.)

3. If the president’s business enterprise strikes a deal with a corporation formed by a foreign government not directly involving provision of services, is it clear that no “emolument” is involved? It’s not clear to me.

4. Does it matter that the Trump kids, rather than President Trump himself, will be running the Trump enterprises? In that case, maybe the emolument, if any, is going to the kids rather than to Dad. But surely the purpose underlying the Foreign Emoluments Clause is implicated.

What are called “blind trusts” are often like the “blind” beggars in The Hunchback of Notre Dame. With the Trump family in charge, I don’t see how anyone can even pretend blindness.……


Even Robert Kagan has identified the animating force for Orange Gasbag’s post-truth avarice, one whose ego will allow for the subordination of the US on the Pacific Rim because of a looming trade war, and a national personality disorder that props up an international neurosis that manifests itself as xenophobia and ultimately new economic and military wars.

And the source of allegiance? We’re supposed to believe that Trump’s support stems from economic stagnation or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced national weakness and incompetence. His incoherent and contradictory utterances have one thing in common: They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger. His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make them shut up…

Conservatives have been warning for decades about government suffocating liberty. But here is the other threat to liberty that Alexis de Tocqueville and the ancient philosophers warned about: that the people in a democracy, excited, angry and unconstrained, might run roughshod over even the institutions created to preserve their freedoms. As Alexander Hamilton watched the French Revolution unfold, he feared in America what he saw play out in France — that the unleashing of popular passions would lead not to greater democracy but to the arrival of a tyrant, riding to power on the shoulders of the people…

But if he wins the election, his legions will likely comprise a majority of the nation. Imagine the power he would wield then. In addition to all that comes from being the leader of a mass following, he would also have the immense powers of the American presidency at his command: the Justice Department, the FBI, the intelligence services, the military. Who would dare to oppose him then?

This is how fascism comes to America, not with jackboots and salutes (although there have been salutes, and a whiff of violence) but with a television huckster, a phony billionaire, a textbook egomaniac “tapping into” popular resentments and insecurities, and with an entire national political party — out of ambition or blind party loyalty, or simply out of fear — falling into line behind him.…


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