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Of President Trump’s many ethical and conflict of interest controversies, the gift of a $400 million luxury aircraft from the Qatari royal family has sparked the most protest among the president’s allies. The deal appears to be that Qatar will gift the aircraft for use for presidential travel during Trump’s term, and for donation after his term ends to his museum foundation. Trump has declared it would be “stupid” of him not to take the plane. The press has reported that Attorney General Pam Bondi and White House Counsel David Warrington concluded that the donation of the plane would be “legally permissible,” but Press Secretary Karoline Leavitt said the legal details were “still being worked out.”
Pro-Trump commentators and influencers—including Laura Loomer, Ben Shapiro, and Mark Levin—have sharply criticized the plan to accept the plane. Senate Majority Leader John Thune, Rand Paul, and Ted Cruz, and other Republicans in Congress have as well. It is, as Politico says, “a rare bipartisan moment in Washington.” The difference between this incident and others that have slid by with little fanfare seems to be the overt acceptance of a large gift from a foreign government, combined with the national security concerns of a president flying in a foreign-constructed aircraft.
But the issue of Trump’s receipts of gifts and money from foreign government sources goes well beyond the airplane deal. As we explain below, Trump has expressly organized his business interests in his second term to facilitate the receipt of foreign gifts. These arrangements probably violate the Foreign Emoluments Clause of the Constitution. But as we learned in Trump’s first term, standing is a high hurdle to litigation under that clause.
The problem can, however, be fruitfully addressed through the passage of legislation and subsequent litigation—if, that is, Congress can overcome its divisiveness and a presidential veto. This seems like a tall order now, but we nonetheless think it fruitful to sketch out the contours of reform.
Trump’s Business Interests
In a striking departure from Trump 1.0, the Trump Organization in this second term revised the company’s ethics policy to allow for a broad range of transactions between the organization (including affiliated entities) and foreign partners and counterparties—including foreign governments. The Trump Organization, which manages Trump family hotel and resort assets, designated under the policy an “ethics advisor” whose duties are limited to a “review” of some, but not all, deals with foreign governments. (The company recently fired its first ethics advisor, William Burck, and has not announced a replacement.)
The policy notably permits business dealings with sovereign wealth funds, “state-owned enterprises,” or other state-owned entities engaged in commercial activities. And the policy does not establish any mechanism for checking for “foreign government interests [that] may also lurk behind even … supposedly private overseas business activity.”
How this policy is implemented in particular cases is unclear, as it does not provide for any public accounting of the deals reviewed for conflict of interest issues. There is evidence that the policy, so permissive in design, is also permissive in application. Significant questions have arisen in particular over foreign participation in the crypto industry, which Trump and his family have established since his first term. The policy has not precluded large foreign investor purchases of the $TRUMP memecoin that the president has actively marketed.
Moreover, the Trump family-affiliated World Liberty Financial (WLF), which markets cryptocurrency, may not be a Trump Organization affiliate subject to the policy. It is affiliated with the Trump family, holding its interest in WLF through “an entity affiliated with Donald J. Trump and certain of his family members.” Either way, WLF entered into a deal that clearly implicates the Emoluments Clause: Binance, the world’s largest crypto exchange, has announced that an Abu Dhabi-backed investment fund will use a World Liberty Financial “stablecoin” to make a $2 billion investment in the exchange.
These avenues for foreign government financial involvement with the president fly directly in the face of the Foreign Emoluments Clause in Article I, Section 9, which provides that “no Person holding any Office of Profit or Trust under [the United States], 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.”
The adoption of the clause reflected the framers’ powerful concern about foreign government corruption of the presidency. The danger persists to this day: A Council on Foreign Relations study last year noted that “[t]he oldest form of foreign influence remains one of the most widespread: using money or other material benefits to win elite favor.” Among the countries that the study cites as engaging in this behavior: Qatar.
The Foreign Emoluments Clause
The Foreign Emoluments Clause does not mention the president by name. The Office of Legal Counsel has concluded that it nonetheless applies to the president, as has at least one lower court. The Supreme Court has not weighed in.
Congress assumed that the Foreign Emoluments Clause applied to the president when it exercised its power to “consent” to foreign “emoluments” in the Foreign Gifts and Decorations Act of 1966 (FGDA). That statute specifically applies to the president and supplies congressional consent for gifts of “minimal value” that might be received in the course of hospitality provided by a foreign government or official. Congress implicitly found that these low-level gifts may or do constitute “emoluments,” but by express “consent” it has removed the receipt of these benefits from the strictures of the clause. Congress has not consented to larger gifts, though there is a question about what constitutes an emolument that a president could not accept without congressional consent.
By providing consent for gifts of even minimal value, the FGDA reflects Congress’s view that the clause’s reach is comprehensive. The clause’s prohibition on receipt without consent of “any present, Emolument … of any kind whatever” (emphasis added) from a foreign state supports this position.
But in litigation over the course of Trump’s first term, his administration argued for a far narrower reading that would limit the scope of emoluments to those provided to the president in return for specific personal services rendered. Under this interpretation, the only emolument subject to congressional consent would be one that, in effect, the president earned. The litigation ended without resolving this issue, or the question of the clause’s application to the president, when Trump lost the 2020 Election, and the Supreme Court dismissed the pending cases as moot.
Foreign Emoluments Clause Reform
Trump’s machinations for financial self-aggrandizement are a dangerous disregard not just of the Foreign Emoluments Clause, but also of the broader idea that the presidency serves the public and not the person of the president. Congress should respond with strong medicine to this basic challenge to constitutionalism. It can do so by building legislation on top of the Foreign Emoluments Clause, addressing key and unresolved issues of application, and putting teeth into its constitutional authority to consent, or refuse to consent, to emoluments.
We propose that Congress amend the Foreign Gifts and Decorations Act to provide that presidents or the businesses in which they hold financial interests must report to the House and Senate Foreign Relations committees interests in, and income reasonably anticipated or received from, foreign state investment vehicles or foreign state-controlled businesses. The committees would then make these disclosures public.
The legislation could further establish a structure for congressional consent to any reported interest or income to the president from foreign government sources. Specifically, the legislation could provide that unless Congress affirmatively consents within a specified period of time, any such benefits would have to be disgorged and paid to the U.S. Treasury. Congressional inaction would thus function as a denial of consent.
The disclosures would be wide ranging, perhaps drawing on the broad definition of reportable “financial interests” in the Ethics in Government Act, which imposes personal financial disclosure requirements on the president (as well as other senior executive branch officials, members of Congress and their senior staff, and the federal judiciary). The interests subject to this reporting include property interests and assets, investment and non-investment income, rents and royalties, dividends, annuities, and contract payments.
In designing a reform that focuses on foreign state sources, Congress could include appropriate exceptions, such as those provided by statute and related Office of Government Ethics (OGE) regulations governing other conflicts of interests. These exceptions would apply to interests “too remote or too inconsequential”—and therefore too “unlikely to affect an employee’s official actions”—to constitute “emoluments” for which congressional consent is required.
However, in providing for an exception, or for any other gaps to be filled by regulation, congressional reform would have to account for the radically weakened position of the OGE in this administration. Trump fired its director and replaced him with an acting director who is also the Senate-confirmed United States Special Trade Representative—effectively converting the OGE directorship to a part-time position. The current administration’s robust program for establishing a unitary executive, in full charge of legal interpretation and policy across the executive branch, also strongly suggests that Congress cannot look to OGE for reliable support in assisting Congress with Emolument Clause reform.
One option among others for addressing this issue is a requirement that the Government Accountability Office make recommendations to guide Congress in identifying any de minimus or other gifts for which it might provide affirmative consent.
Conclusion
We have proposed basic principles to guide reform for dealing with the president’s many emoluments issues in his second term. Congress should speak up when the issue, as here, concerns an explicit constitutional allocation of authority to the legislative branch in a matter that, unlike so many others in this era, transcends the normal partisan divisions. If Congress does not act, it will be ceding the construction and application of the Foreign Emoluments Clause to the business dealings of President Trump, as readily approved by executive branch lawyers.