Episode 758: Can Trump Take The Money? : Planet Money The Constitution contains a paragraph known as the Emoluments Clause. It's 49 words meant to prevent foreign influence on US officials. How does it apply to a president with a global business empire?

Episode 758: Can Trump Take The Money?

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It is possible to spend an entire day in New York City...


And a pretty fun day at that.

KING: A fun day, yeah, eating and drinking and hanging out only at places that are owned or run by President Donald Trump.

SMITH: In fact, just this afternoon, Noel and I decided to give $6 to Donald Trump and ride the carousel he runs in Central Park.

Which one do you want? Which one?

KING: I want the tall one. I want the tall one.

After the carousel, we walked down the street to Trump Tower.

SMITH: Where I tried on some clothing from the fine, fine Trump Collection - beautiful ties.

KING: Can you just try the red one because it's more presidential?

And I browsed through the men's cologne.

SMITH: There's only one.

KING: Oh, look, Success cologne by Trump. Can I spray some on you?

SMITH: No, no, no, no, no, no, that's too much.

KING: I thought you wanted more. I'm sorry.

SMITH: That's going to be a problem.

You can eat at the Trump Grill, get that famous taco salad. Afterwards, you can go to the Trump Ice Cream Parlor. We personally decided on a different kind of dessert.


SMITH: Cheers.

KING: Cheers, Robert.

SMITH: The sweet, sweet sound of the Billionaire Martini at the Trump Bar. Now, none of this should come as a surprise to you. We all know that Donald Trump owns a lot of stuff, runs a lot of stuff, profits off of a lot of people for his business. And you can feel uneasy about this. It may be unethical to be a sitting president and make money off tourists. But it isn't technically illegal.

KING: But up above us in Trump Tower, there is an office being rented out by the Industrial and Commercial Bank of China.

SMITH: Which is a bank owned by the government of China.

KING: Which means the Chinese government is paying rent to the president of the United States.

SMITH: And there is a group of lawyers who says that, that is not legal. In fact, they're suing the president.

KING: They say he's violating something called the Emoluments Clause. It's a couple lines written into the Constitution. And here's what they say.

SMITH: I actually have a special Constitution reading voice. (Reading) 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 Congress, accept any present, emolument, office or title of any kind whatever from any king, prince or foreign state.

KING: Emoluments means profits. You can't profit from the office of the president. And the reasoning behind this is simple. The president makes trade policy. He decides who our allies are, who our enemies are. We don't want him influenced by other countries. So these lawyers who filed suit, they want him to divest from his businesses.

Hello, and welcome to PLANET MONEY. I'm Noel King.

SMITH: And I'm Robert Smith. Today on the show we are going to talk about this lawsuit and this strange word, emoluments.

KING: It goes back to something the founders were trying to determine 250 years ago. How do you keep a U.S. president independent, and what should his relationship be to other countries?

SMITH: It is a story that can only be told with singing diplomats, corrupt Romans and lot of lawyers.


SMITH: I swear, every day it feels like we are entering new territory with President Donald Trump. But from the very beginning of the United States of America, the writers of the Constitution were dealing with this exact question - how do you limit the influence of foreign leaders on our elected officials?

KING: There was this early important test case. It was a case that came up around the time they were writing the Constitution. And it involved Benjamin Franklin.

SMITH: Who was Trump-like in some ways.

KING: Some ways.

SMITH: Big personality, an entrepreneur. And when he walked into a room he was the center of attention. Everyone was talking about Benjamin Franklin, the kind of guy you'd write a Broadway musical about.


ROBERT PRESTON: (As Benjamin Franklin, singing) I invented myself out of odds and ends.


UNIDENTIFIED ACTOR #1: (As character) But didn't you, monsieur (ph)...

KING: We have no tape of Benjamin Franklin, but we have the next best thing.

SMITH: (Clapping).

KING: (Laughter) Clapping (laughter).

SMITH: This weird Broadway musical from the 1960s called "Ben Franklin In Paris." It is no "Hamilton," but it does help tell the story.

KING: And the story is it's October 1776. The United States is a brand new country. The 13 colonies have just declared independence. And Benjamin Franklin is sent by the colonists on a voyage across the ocean to France to essentially be our ambassador. And it's a terrible trip. The weather is stormy. The food is awful. And then finally...


UNIDENTIFIED ACTOR #2: (As character) Hey, what's that?

UNIDENTIFIED ACTOR #3: (As character) That's French cooking smoke.

UNIDENTIFIED ACTOR #4: (As character) France, there she is.

SMITH: French cooking smoke?

KING: Yeah, that's how the colonists talked.

SMITH: That's authentic, yes.

KING: (Laughter) Anyway, Franklin learns to speak French. His grammar is terrible. He falls in love with an eccentric widow, Madame Helvetius. And he plays up the whole self-made American frontiersman thing. He wears a plain brown suit and instead of a powdered wig, which is what the French are wearing, he wears a fur cap.


PRESTON: (As Benjamin Franklin) I made the skin it's wrapped in from the hide of a grizzly bear. I invented myself out of thin blue air.

ZEPHYR TEACHOUT: Franklin had this fantastic - he loved France.

SMITH: And the French loved him. That is Zephyr Teachout. She's one of the lawyers suing President Trump. But before that, she wrote a book about corruption and the Constitution. The book starts with Ben Franklin and this problem that came up when he left France nine years later.

KING: At the time, there's a custom in much of Europe. When an envoy goes home you give him a present. King Louis XVI gave Franklin a serious present. It was a portrait of himself, of the king. And I know what you're thinking. It's not like a portrait that you hang up over your couch. This painting is tiny. It's 2 and a half by 2 inches.

SMITH: Like, it's the size of those graduation photos...

KING: Yes.

SMITH: ...That you hand out on the last day of school.

KING: Wallet-sized.

SMITH: Wallet-sized painting.

KING: Yes. And in the picture the king is wearing this powdered wig, he's got fat, red cheeks and blue eyes, he's got this frilly, flowered collar.

TEACHOUT: So this is kind of interesting, too, right? You know, who gives you a portrait of themselves? And...

KING: Yeah, that's so weird.


TEACHOUT: It's a show of a kind of deeply intimate relationship.

SMITH: OK, but the painting isn't the big deal here. It is the setting. The portrait is set in a frame of two concentric rings of diamonds.

TEACHOUT: Diamonds of the highest water. You know, these sort of incredibly beautiful diamonds.

SMITH: Four hundred and eight diamonds.

KING: Ben Franklin takes the portrait and the diamonds back home, and Zephyr says people start whispering about it. They're like, oh, did you hear he got all these dope diamonds from the king of France?

SMITH: And think about it. The United States is a brand-new country. It is in debt, recovering from this devastating war. And everyone is terrified that they are now at the mercy of the world superpowers like France. And here is their man in Paris waltzing back in with something that's worth more than just about anything else in the United States.

KING: So he asks the other founders, can I keep these diamonds? And they say, it would probably be embarrassing if we made you return them, so fine. You can keep them.

SMITH: But at the time they are writing a constitution, and they don't want to make this kind of thing a habit. And so they write a clause in the Constitution making it very clear - you cannot accept gifts from a foreign leader. You cannot accept titles of nobility.

KING: And you can't take emoluments. You can't make profits off of foreign governments without the permission of Congress.

SMITH: And I'm going to be totally honest with you. I had seen this in news stories, but until today I have never said this word out loud - emoluments.

KING: Whisper it.

SMITH: (Whispering) Emoluments.

KING: (Whispering) Emoluments.

SMITH: And I imagine that even back when the Constitution was written, like, this was not a word you would use every day. You would not go into a bar and meet your friends after a hard day of emoluing (ph) and say...


SMITH: ...How are your emoluments doing, guys?

KING: Right. It - this is a fancy Latin word. But the guys who wrote the Constitution were really into all things Latin. And there's a reason for that. You know, they were writing a Constitution. They're looking around at other countries to use as blueprints for the kind of country that they want - virtuous and decent and democratic. But this is a world of monarchies. To find a republic like the one they wanted, you had to go all the way back to ancient Rome.

CARL RICHARD: The founders were really obsessed with the late Roman Republic.

SMITH: This is historian Carl Richard. He wrote "Greeks And Romans Bearing Gifts" about how Rome inspired the Founding Fathers.

KING: Yeah, they copied Rome. They called the Senate the Senate, like Rome. They picked the eagle as the national bird, like Rome. And when they get in fights, they write snippy letters back and forth, and the ultimate dig is to call a guy a Caesar. So Hamilton is writing that Jefferson is a Caesar and Jefferson is writing that Hamilton is a Caesar.

RICHARD: And they all pretty much agreed on both sides that Aaron Burr was a Caesar.

KING: (Laughter).

SMITH: Now, our founders knew that Rome eventually fell apart. And it was vital for them that they figure out what killed the Roman Republic.

RICHARD: And so they were sort of doing autopsies on ancient Roman Republic to see what is it - what killed, you know, this model that we're basing things on.

KING: Corruption. That's what they decide is the big threat, corruption. So when they're sitting in that room writing the Constitution, yes, they're talking about trade. They're talking about security. But Zephyr Teachout says they keep coming back to corruption.

TEACHOUT: The notebooks from the Constitutional Convention from James Madison, you'll see the word corrupt or corruption written in his longhand script 54 times.

KING: Whoa.

SMITH: And yet when I remember studying American history in high school, I don't remember this coming up an awful lot, this Emoluments Clause.

KING: No. Presidents and other elected officials have been so paranoid that they might seem to be in violation of it that they do everything they can to avoid it. In fact, in the handful of times it does come up, it sounds ridiculous.

TEACHOUT: Martin Van Buren was given a shawl by a foreign government.

KING: Really nice shawl or (laughter)...

TEACHOUT: (Laughter) Nice shawl. I think he was also given another horse and a sword. And Van Buren says, I can't except these. It's part of - it's a fundamental law of our republic.

KING: Or if presidents or other U.S. officials do accept gifts, they do what the clause says they got to do. They ask Congress for permission.

SMITH: It doesn't come up very often, but when President Obama was awarded the Nobel Peace Prize, which comes with a $1.4 billion check, he did ask the Justice Department, can I keep this?

KING: And they said, yes, he could because it wasn't a government that gave him the check. It was private money.

SMITH: And then along comes someone who can really test this part of the Constitution - President Donald Trump. His entire being is profits. He's a living emolument - a president who ran on his global business empire.


PRESIDENT DONALD TRUMP: I built a phenomenal business with incredible iconic assets - one of the really, truly great real estate businesses.

SMITH: And Donald Trump has never hid the fact that some of his profits do come from foreign governments, and that is what the lawsuit alleges - that that money violates the Emoluments Clause.

KING: But here's where the confusion starts. No one's really pushed on this before. No president's been sued under the Emoluments Clause until now. On the Monday after Trump was inaugurated - he'd been in office about 70 hours - a team of lawyers files a suit - says, you're violating the Constitution.

SMITH: That team includes Zephyr Teachout, the law professor we heard from before. We should also say she's a Democrat who has run for office as a Democrat. It includes Richard Painter, who served as chief ethics lawyer for George W. Bush, and Norm Eisen, who was Obama's chief ethics lawyer.

KING: Their lawsuit says Trump is profiting in four ways.

SMITH: Let's do them. Number one - rent, like the Chinese-government-owned bank paying rent in Trump Tower.

TEACHOUT: So you have the government of China in a position to make the president of our country richer or poorer through those lease negotiations.

KING: Number two - foreign heads of state and foreign diplomats are staying at his hotels, paying for hotel rooms.

SMITH: Number three - his television show, "The Apprentice" - it airs in countries like Britain and Vietnam, where the television is state-owned. So at least indirectly, foreign governments are paying Donald Trump.

KING: And number four - the Trump organization does a lot of business overseas in places like Turkey and India and Indonesia. Those real estate deals require permits, and permits can be hard to get. In fact, in a lot of these countries, the permit process is not exactly transparent.

SMITH: And this literally happened just a couple days ago. The Chinese government granted preliminary approval for 38 trademarks linked to Donald Trump's name, essentially giving him the right to use his name on things like spas, massage parlors, golf clubs, hotels, insurance. The list goes on and on. This is worth something to Donald Trump.

KING: And, again, there is no proof that any of this has made the president act in an unethical way or a corrupt way or that there was any exchange of favors between him and China. That, though, is not the point. The point is the Constitution doesn't even seem to want us to have this discussion.

SMITH: Because it doesn't say in the Constitution you have to get something in return for an emolument. It just says don't take emoluments. And this is the argument that Zephyr and the team of lawyers want to make in court.

KING: The big question is - what does President Trump have to say about all this? I emailed the White House. I didn't hear back. But right before Trump took office, he held a press conference to address some of this. He stood at a table. He was surrounded by piles and piles of manila folders. And he said, look, this is proof I'm turning over Trump Organization to my sons, even though he does still own everything.

SMITH: And he introduces lawyer Sheri Dillon, and she got right to it on emoluments and influence.


SHERI DILLON: No one would have thought when the Constitution was written that paying your hotel bill was an emolument.

KING: She said when the Founding Fathers said emoluments, they were thinking about profits you make because you're the president, not profits you make because you're a businessman selling something of value that people want. And so when someone pays a hotel bill, they're not paying President Trump who was inaugurated in January. They're paying businessman Trump, who's been in business for decades. They're actually paying his organization, which employs thousands of people.

SMITH: But even so, Trump's lawyer said at that press conference, we're going to throw all you haters a bone.


DILLON: President-elect Trump has decided - and we are announcing today - that he is going to voluntarily donate all profits from foreign government payments made to his hotels to the United States Treasury. This way, it is the American people who will profit.

KING: And that sounds good, but there is no clause that says all profits made during one's time in office go to the Treasury. It says no profits.

SMITH: I mean, it says any present emolument, office or title of any kind - comma - whatever.

KING: Whatever.

SMITH: Like, they're just like - I don't know. It sounds bad - whatever - whatever you come up with, don't do it.

KING: Now, in order for this lawsuit to proceed, the lawyers still have to get it into court. In a lawsuit like this, you have to have something called standing. Standing means you need to prove you're being hurt by these alleged violations of the Constitution.

SMITH: So, for instance, the Marriott Corporation - Marriott owns many hotels in the D.C. area. And they could say, hey, all of the diplomats want to stay at the fancy-pants Trump hotel, and they're not staying at our hotel. Like, they're actually materially hurt by this.

KING: Yes, exactly, except it's not Marriott Hotels that has filed the lawsuit. It's a bunch of lawyers.

SMITH: Who I'm sure feel psychic pain.

KING: Yes.

SMITH: Moral and ethical pain.

KING: Not just that - they say they do have standing. They say they are being harmed. They belong to a government watchdog. They're supposed to monitor government ethics. And they say, we can't monitor the government at this point because all of our time and energy is being spent watching the president of the United States. We can't do our job, so we're being hurt.

SMITH: I am not a lawyer, but I am going to say that that sounds like a bit of a stretch.

KING: I talked to some lawyers for this story who agree with you. They say, yeah, this is borderline, but I also talked to a law professor who's not part of the suit. And he says winning it, forcing the president to divest - that might not be the point here. Maybe the point is to keep the heat on the president.

SMITH: To Ben Franklin him essentially - to keep everyone talking about this thing.

KING: Yeah, to let him know we're going to be watching. And as far as your business deals overseas are concerned, the Founding Fathers have got their eyes on you.


SMITH: We have one more part of this story after the break. What ever happened to Ben Franklin's diamonds?

KING: So, Robert, when I started reporting this story, I kept asking people - whatever happened to the portrait and the diamonds that King Louis XVI gave Benjamin Franklin?

SMITH: Because you wanted to describe it and tell people what this thing was like.

KING: Yeah. And no one seemed to know where they had gone, but I finally found them.

SMITH: You found them.

KING: I found them at the American Philosophical Society Museum in Philadelphia.

SMITH: Do they have a little tiny room for that little tiny portrait?

KING: No, it is not on display. And at this point, only the portrait is left. When Ben Franklin died, he willed the picture and the diamonds to his daughter, Sarah. He asked her for two things. Please don't wear them and start a fancy jewelry trend, and please don't sell them. So do you know what she did?

SMITH: Oh, she totally sold them.

KING: Yeah. Yeah. She started prying them off and selling them.

SMITH: (Laughter).

KING: And she used the money to take a trip to France.

SMITH: I'm not sure Ben Franklin wanted that as his legacy.

KING: You know, at the end of the musical "Ben Franklin In Paris"...

SMITH: You don't want to spoil the end.

KING: I don't think this musical will ever be performed again.


KING: Franklin gives this speech, and he says, I wish I wouldn't die. I wish I could go to sleep for 200 years and then wake up...


PRESTON: (As Benjamin Franklin) ...And stand once more on Pennsylvania Lane and walk and talk and breathe the free air, for I know in my heart somehow it will be free. I know it. I know it even now. And I wonder - I wonder how I should find them then - those Americans to whom the name American will not be new. Will they love liberty, being given it outright in the crib for nothing? And will they know that if you are not free, you are, sir, lost without hope? And will they who reap this harvest of ideas be willing to strive to preserve them as we so willingly strove to plant them?

SMITH: If you hear a term in the news that you would like us to explain, especially if we can dredge up musicals of the '60s, you should email us at planetmoney@npr.org or find us on Facebook or Twitter.

KING: Today's show is produced by Sally Helm. Our editor is Bryant Urstadt. We have a couple people who really helped us out with this episode. Jay Wexler is a professor at Boston University's School of Law. He wrote a very funny book called "The Odd Clauses: Understanding The Constitution Through 10 Of Its Most Curious Provisions." Thanks, also, to Seth Barrett Tillman. He's a lecturer at Maynooth University Department of Law. And thanks to Josh Katzen (ph).

SMITH: And we should say the musical "Ben Franklin In Paris" was written by Sidney Michaels with music by Mark Sandrich Jr., and Jerry Herman.

KING: Now that you've finished listening to PLANET MONEY, may we recommend another really great NPR show, Embedded?

SMITH: Embedded is back for a special three-episode run. Kelly McEvers is bringing you a real dramatic story about police shootings and the videos of police shootings. You can find that on NPR One or wherever you get your podcasts. I'm Robert Smith.

KING: And I'm Noel King. Thanks for listening.

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