"More than any other constitutional provision, the Emoluments Clause reflects the Framers' determined effort to ensure that no federal officeholder in the United States ever could be influenced by gifts of any kind from a foreign government. Indeed, the Clause was seen as so important that the Eleventh Congress considered, as a proposed Thirteenth Amendment, a provision stating that a person would lose his or her citizenship by accepting an office or emolument from a foreign power. The proposed amendment was, in a modified form, accepted by both Houses, and subsequently obtained the approval of all but one of the requisite number of States. The leading explanation for why this proposed amendment failed is that it was seen as unnecessary, given existing protections." [Brookings Institute, 12/16/16]
The Clause Doesn't Just Prohibit Direct Payments From Foreign Governments, But Also Prohibits Receiving Emoluments From A Government's Agents And Instrumentalities. Citing memoranda issued by the Department of Justice Office of Legal Counsel (OLC), the federal office that "provides authoritative legal advice to the President and all the Executive Branch agencies," the Brookings report concludes that "it is settled that the Emoluments Clause reaches not only 'foreign State[s],' but also their agents and instrumentalities," including "corporations owned or controlled by a foreign government":
Experts Say Trump Must Fully Divest From His Business Interests To Avoid Violating The Emoluments Clause"A final question concerns the meaning of 'King, Prince, or foreign State.' There is a substantial body of OLC precedent addressing this question, which usefully catalogues the factors relevant to determining whether an actor qualifies as a 'foreign State':
"[T]he factors we have considered in conducting such an assessment include whether a foreign government has an active role in the management of the decision-making entity; whether a foreign government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument; and whether a foreign government is a substantial source of funding for the entity. No one of these factors has been dispositive. We have looked to them in combination to assess the status of the decision-making entity for purposes of the Clause, keeping in mind the underlying purpose that the Clause serves.
[...]
"In all circumstances, however, it is settled that the Emoluments Clause reaches not only 'foreign State[s],' but also their agents and instrumentalities. Accordingly, and as is most relevant here, OLC has determined that 'corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause.'" [Brookings Institute, 12/16/16, Department of Justice
Office of Legal Counsel, accessed 1/19/17]
Legal Ethics Experts: "The Only True Solution Is For Mr. Trump And His Children To Divest Themselves Of All Ownership Interests In The Trump Business Empire." Painter, Eisen, and Tribe concluded in their report that the Emoluments Clause requires a total divestment in business interests by Trump and his children, with the divestment process conducted by "an independent third party, who can then turn the resulting assets over to a true blind trust." Their analysis also explains that Trump turning over his business operations to his children would not constitute a blind trust:
"Thus, under the text and purpose of the Emoluments Clause, a 'blind trust' in which Mr. Trump's children manage his assets and run the business is wholly deficient. Payments made (and benefits conferred) by foreign states and their agents would still qualify as 'any present, Emolument, Office, or Title, of any kind whatever.' And all of the concerns about blurred loyalties animating the Clause would remain fully implicated. Blindness in this context works only if neither side can reasonably conclude that the seemingly opaque 'wall' is actually a one-way mirror that the other side can see through.
[...]
"Commentators have proposed a dizzying array of possible solutions to Mr. Trump's oncoming Emoluments Clause violation. But the only true solution is for Mr. Trump and his children to divest themselves of all ownership interests in the Trump business empire. That divestment process must be run by an independent third party, who can then turn the resulting assets over to a true blind trust. Even if, as some experts believe, there is nothing that Mr. Trump could do to avoid the significant tax consequences of divesting, fidelity to the Constitution, and to American foreign policy and national security interests, manifestly overcomes all such loss to Mr. Trump or his immediate family (who will remain extremely wealthy, in all events)." [Brookings Institute, 12/16/16]
NY Times: According To Eisen And Painter, "Every President In The Past Four Decades ... Has Taken Personal Holdings He Had Before Being Elected And Put Them Into A Blind Trust In Which The Assets Were Controlled By An Independent Party." [The New York Times, 11/30/16]
The Business Plan Trump Announced Places Him In Violation Of The Emoluments Clause The Moment He Is Sworn Into OfficeTrump Announced He Will Retain An Ownership Interest In The Trump Organization While He Serves At President. Trump announced at a January 11 press conference that he would transfer control of The Trump Organization to a trust controlled by his eldest sons, Donald Jr. and Eric, and Trump Organization CFO Allen Weisselberg, but that he would still retain an ownership interest in the business and receive reports on its finances. Trump's attorney said the company would also appoint an in-house ethics consultant to review future actions and cancel pending foreign deals. Ethics experts later said these measures were insufficient to resolve conflict of interest concerns. [Forbes, 1/11/17; CNN Money, 1/11/17; The New York Times, 1/12/17]
Government Ethics Expert Kathleen Clark: Under Plan, Trump "Will Receive Money From Foreign Governments, That Is What's Prohibited." In an interview with Media Matters, Kathleen Clark, a law professor at Washington University School of Law, and legal ethics expert, raised the Emoluments Clause in criticizing Trump's business plan as "prohibited":
"Kathleen Clark, a Washington University School of Law professor and government ethics expert, said Trump needs to "remove not just his management activities, but remove himself from having a financial interest in the firm. He's retaining a financial interest in the company -- that hasn't changed.
"'He'll still be financially benefiting from them. I didn't see any indication that he is giving up an ownership interest at all.'
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