As predicted, the campaign against Donald Trump’s coming Presidency continues unabated, notwithstanding the failure of the attempt to persuade Republican electors in the Electoral College to switch their votes away from him.
The objective now is his impeachment, with the most cited reason being the so-called Emoluments Clause in Article 1 of the US Constitution. This reads as follows
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
As is now becoming traditional, advocates of impeaching Trump under this clause also cite in their support The Federalist Papers, a series of articles written by Alexander Hamilton, James Madison, and John Jay promoting ratification of the US Constitution. The article cited in this case is Federalist No.22, in which Alexander Hamilton wrote the following
One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to sacrifice his subjects to his ambition, has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state. The world has accordingly been witness to few examples of this species of royal prostitution, though there have been abundant specimens of every other kind.
In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty.
This is supposed to the explain the reason for the Emoluments Clause, though it is nowhere referred to in Federalist No. 22, and though the Federalist Papers are anyway no more than journalistic essays, and are not part of the US Constitution.
That Donald Trump’s opponents are already talking about his impeachment even before he is inaugurated is completely unsurprising. As a matter of fact I predicted it would happen before the election
If [the next President] is Donald Trump, then he will have to contend with the fact that he is the candidate Hillary Clinton, her campaign, most of the political establishment, nearly all the media, and the US intelligence community, have publicly claimed Russia is helping to win.
How in that case, if Trump does win, would he as President be able to command the respect and loyalty of the foreign policy bureaucracy, of the intelligence community, of the military, of the media, and of Congress, when they have all been told that he is the preferred candidate and quite possibly the agent of a foreign power? Would they not see it as their duty to obstruct and disobey him at every turn, so as to stop him selling out the country to his foreign puppet-masters?
How does Trump contend with the insinuation, which will be hanging over his Presidency from the first day if he is elected, that it was only because of Russian help (right down to the hacking of voting machines) that he won, and that he is not therefore the true choice of the American people? Would not Trump have to fear possible impeachment proceedings in the event that he made the smallest mistake, with many Americans feeling that any steps were justified to remove a President who they had been told was the agent of a hostile power?
(bold italics added)
Nor is it surprising that they have latched on to the Emoluments Clause. Donald Trump is a very wealthy businessman with international connections. Almost by definition that has involved him in commercial dealings in foreign states. There continues to be a quiet drumbeat of allegations that his business was bailed out by Russian banks and that he has some mysterious business connection to Russia, which he is trying to conceal by withholding his tax returns. The fact the FBI investigated this allegation before the election, and found it groundless, needless to say in no way prevents it being repeated.
For the record, though I am not a US constitutional lawyer, I don’t think the Emoluments Clause has any bearing on Donald Trump’s previous business activities or his connections, real or alleged, with foreign states or foreign businessmen or with Russia.
Its wording seems to me clearly intended to defeat bribery, in which a foreign state buys the services of a US official in return for a title or a fee. This is incidentally the point made by Alexander Hamilton in Federalist No. 22 in the following words, which directly follow his words which I have quoted above, but which advocates of using the Emolument Clause to impeach Donald Trump who cite Federalist No. 22 seem to overlook
Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments. How much this contributed to the ruin of the ancient commonwealths has been already delineated. It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major’s commission for one of those deputies. And in Sweden the parties were alternately bought by France and England in so barefaced and notorious a manner that it excited universal disgust in the nation, and was a principal cause that the most limited monarch in Europe, in a single day, without tumult, violence, or opposition, became one of the most absolute and uncontrolled.
There is a fundamental difference between money transferred as a result of bona fide business transactions – which is all that Donald Trump seems to have been engaged in – and money paid as a bribe in return for a favour from a present or prospective office holder. If anything the payments made to the Clinton Foundation by various foreign citizens and governments look far more like bribes than any of the payments Donald Trump is known to have received.
None of this of course is what the talk of impeachment in really about. Wealthy men with international connections have been Presidents of the United States before without anyone suggesting that the Emoluments Clause applied to them. The true reason there is already talk of impeaching Trump before he is even inaugurated is because a dangerously large proportion of the US political elite refuses to admit his legitimacy despite the fact he was lawfully and constitutionally elected, and the Emoluments Clause is simply the most convenient tool to hand.
In the short term attempts to impeach Donald Trump face a probably insurmountable obstacle in the form of House of Representatives, in which the Republicans have a majority. It beggars belief that an impeachment bill will pass the House of Representatives against a Republican President who has just been elected.
However not all Republicans support or are sympathetic to Trump. On the contrary, there is a solid block of Republicans who dislike him intensely. Though Trump seems to have more support amongst Republicans in the House of Representatives than he does in the Senate, should things turn difficult there is no certain guarantee that all the Republicans in the House of Representatives will stand by him.
There is to my knowledge no precedent for talk of impeaching a newly elected President before he is inaugurated. Many Democrats point rightly to the implacable hostility shown to Democratic Presidents like Bill Clinton and Barack Obama by the Republican Party. However in neither case did the Republicans dispute the legitimacy of their election, attempt to lobby Democratic electors in the Electoral College to get them to change their votes, or talk of bringing impeachment proceedings before Bill Clinton or Barack Obama had even been inaugurated.
Donald Trump is going to require exceptional political skill if the four years are not going to be crisis ridden and extremely rocky.