Commentary Magazine

The Impeachment Trap

AP Photo/ Evan Vucci, File

We may still be 30 days away from Donald Trump’s inauguration but a lot of Democrats and their media allies are already starting to work toward his impeachment. Having failed to stop Trump during the general-election campaign or via post-election hurdles such as recounts or the Electoral College’s vote, the true #NeverTrump movement ironically thinks their luck will change once the 45th president is sworn into office.

The conceit of this impeachment effort rests on the idea that the moment Trump becomes president he will begin violating the emoluments clause of the Constitution, which forbids any officer of the U.S. from accepting any “present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The prohibition against foreign bribery is straightforward and makes as much sense in the 21st century as it did in the 18th when the Founders had good reason to worry about European powers seeking to control the affairs of the new republic. As far as the political left is concerned, it provides the magic bullet with which they can finally slay Trump.

Their reasoning is simple. Every time any foreign country pays for a room or a reception at the Trump International Hotel in Washington, D.C., they want the transaction to be considered a potential bribe of the new president and his family-run company. The same applies to every other interaction between the many nations around the globe that have dealings with Trump’s far-flung holdings and interests. Unless the billionaire and his children — whom he says will run the company while he’s president — divest themselves of all of his holdings before January 20th, he will be in violation of Article I, Section 9 of the Constitution the moment he takes the oath of office.

There’s a certain logic to this argument and it is lent weight by the reported upswing in business at the Trump’s new DC hotel. It’s also true that foreign governments may be under the impression that favoring Trump’s businesses is a way to gain favor with the new administration. This theme is explored at length in a Newsweek feature in which potential conflicts involving Trump investments in the Philippines and Taiwan were detailed. The same piece also raised the possibility that Trump’s interest in freeing an employee held by the Turkish government might prompt him to agree to the extradition of exiled cleric Fethulah Gullen, a move that would trash American values and its interest in promoting democracy.

But while some liberals may think this gives them an express lane toward impeachment, they are simplifying a complex problem. They’re also rendering themselves vulnerable to charges of criminalizing political differences in a way that could make Trump more, rather than less, popular.

While presidents are exempt from the onerous conflict of interest regulations that other federal employees must worry about, Trump needs to understand that merely passing control of company business to his children or to say, as he has, that no new deals will be made while he’s in the White House, still leaves him exposed to the ultimate sanction of a president. But no matter what structure he creates, it’s unlikely that his critics will be satisfied with any measure short of divestment, which is to say, the virtual dissolution of the Trump family business.

Trump-bashers may claim that the technical questions of legality will override all political considerations, but that is naïve.

No one in the political world would have believed that anyone running for president in this day and age could get away with not releasing his tax returns, let alone someone whose finances are as complicated as those of Trump. But that’s exactly what he did in 2016. The verdict from the voters — or at least the 46 percent of Americans who voted for him — was that they weren’t that interested in the subject. Presumably his voters and others assume Trump is too rich to steal or to have his decisions influenced by profiting from his office. The evidence that the public is eager to force Trump to dismantle his business — as opposed to merely establishing some sort of firewall between their management and his family — is lacking.

Trump’s continued interest in his business during the campaign may feed cynicism about his activities but the notion that a billionaire would actually sell favors to foreigners or alter policy to make a few extra bucks seems far-fetched. No matter what you may think of him, his point that he could be making a lot more money outside of politics than it makes sense. Litigation over the Emoluments Clause could also take years to adjudicate.

Even more important, if Democrats go all in on this attempt to defenestrate him even before he’s settled into the Oval Office is bound to strike even many of those who voted against him as an example of petty partisanship at work. That’s especially true given that most of the same Democrats crying bloody murder about Trump’s conflicts were not interested in Hillary Clinton’s.

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