The ethical landmines of the Constitution’s emoluments
Whatever one may think about America’s prospects under the Trump administration, it seems clear already that his time in office will provide Americans with ample opportunities to learn history, ethics and civics lessons we might have otherwise ignored (sorta like “Hamilton,” but without the music).
One such lesson, ongoing, is what, exactly, the emoluments clause of the Constitution is and why our founders thought it prudent to include it. We heard much about it leading up to the transfer of power, and we are likely to hear much more given that a lawsuit has been filed against the president on grounds that he is in violation of it.
In a nutshell, the framers were worried that as a young country, and one on shaky financial ground after a bruising revolution, leaders of the time — and beyond — might be susceptible to foreign influence. The potential for “bribes, presents, emolument, office or title” could have corrupting influence on our leaders and steer the country away from concerns with the public good toward an “every man for himself” orientation.
Perhaps one could say their concern wasn’t that absolute power would corrupt absolutely, but rather the money that followed on from that power would. Or could. So to avoid any conflict of interest, real or potential, officeholders were legally forbidden to accept any such emoluments from foreign states.
In present-day parlance, officeholders were required to distance themselves legally — and rhetorically — from any business interests that stood to gain from the relationships, policy-making power or other advantage the office gave. Beyond legal questions, however, it was also seen as simply “the right thing to do.”
Holders of our highest political offices were not only to seek to avoid any appearances of impropriety, they were actually expected to be moral exemplars, however much of what that means may have changed. It would always be nice, then as now, if persons seeking office were possessed of the sort of character that put them beyond reproach, to exhibit virtues that the country could hold up as those at which the rest of us might aim.
To be sure, we have had our share of virtuous leaders. But the founders also were realists and knew that even the best among us could be tested and tempted by the ascent into territory where the opportunity to take advantage of the public trust might be greater than those one’s character had previously withstood.
Enter President Trump and his vast overseas business dealings; disclosure filings suggest he has ties to more than 500 companies, including ones in Saudi Arabia and China. The issue is not simply of legality — as it turns out scholars don’t necessarily have consensus on whether, or exactly how, the emoluments clause pertains to the president — but ethics and precedent. Since 1978 there have been provisions for “strict blind trusts” managed by “truly independent managers.” Public figures from Kennedy to Romney have sought to take advantage of those, or promised they would if elected.
Trump’s plan is to hand off his business dealings to his two oldest sons and one of his executives, a plan that has been characterized as an “ethical landmine” by everyone from the Citizens for Responsibility and Ethics in Washington, which is bringing the lawsuit to, you guessed it, the New York Times and others.
But what’s the actual dilemma? The answer, however difficult to quantify, is that even the appearance of impropriety — in this case potentially enriching yourself by deciding difficult foreign policy question in yours or your partner’s favor — undermines the public’s trust in fairness. There’s a sense that the president is, or at least is seeking to be, above anything other than doing what is best and right for the broad number of us who are so dependent upon him for our safety, security and well being.
I appreciate we live in a cynical age and expectations are fairly low for our elected officials, but that is all the more reason they might strive to show, by way of example and rhetoric, an idealism that uplifts the rest of us rather than reinforces our weary resignation.
“Servant leadership” is a term that is used frequently and sincerely in West Michigan, and it has served us well here in terms of loyalty to employees, stakeholders and the community. No one here apologizes for its nod to virtues like humility, honor or trustworthiness. It points to responsible action, certainly, but even more so to the intent and character behind the action.
The law, in the end, may or may not dictate a different course of action for President Trump and his business holdings. Our faith in our institutions as envisioned by our founders might well, however.
Michael DeWilde is the director of the Koeze Business Ethics Initiative at Grand Valley State University and an associate professor of philosophy. He can be reached at email@example.com.