President Trump's handling of the "One China Policy" is the best illustration to date of why the Framers crafted the Emoluments Clause into the U.S. Constitution. It illustrates clearly how financial benefits from foreign countries can be used to shape U.S. Policy. The Emoluments Clause prohibits the President from accepting any item of value from a foreign government without Congressional approval. It is precisely what President Trump has done regarding the One China Policy that the framers set out to prevent.
For years there has been controversy as to whether Taiwan, a little island off mainland China is part of China. The Chinese government views Taiwan as part of China while the Taiwanese consider themselves an independent sovereign state. Countries that treat Taiwan as an independent sovereign state inevitably get in trouble with the Chinese government. The U.S. officially endorsed the One China Policy in 1972 following talks between President Richard Nixon and Chairman Mao Tse-tung. Every U.S. administration ever since has honored the One China Policy. Enter President Donald J. Trump.
Shortly after his inauguration as the 45th President of the United States on Jan 20, 2017 President Trump declared that unlike previous administrations, his wouldn't necessarily abide by the One China Policy. The argument by President Trump, a plausible one, was that China has long taken advantage of the U.S. in trade agreements and that it was time for the U.S. to strengthen it's bargaining position. That means as far as his administration was concerned everything with China was up for renegotiation including the the One China Policy. As expected this created a lot of tension between Beijing and Washington. Foreign policy experts differ on whether such a tough stance on China benefits the U.S. and yours truly is not qualified to evaluate such merits and demerits. However what President Trump left out of his "feud" with China, which is the subject of this blog piece, is that privately since 2006 he has unsuccessfully sought to trademark his brand in China.
It appears that President Trump's tough stance on China wasn't necessarily aimed at improving the U.S. bargaining position with China but rather advancing his private business interests. Specifically, the President was fully aware that attacking the One China Policy, a highly emotional issue for the Chinese, would force them to finally grant his trademark licence. On February 9, 2016 following a phone conversation with the Chinese President, the White House announced that President Trump would now abide by the One China Policy as have previous Presidents. This abrupt change in course threw off even his most ardent fans. Shortly thereafter the Chinese reciprocated, granting the elusive trademark license. This is a classic case of an Emoluments Clause violation which the media is yet to pounce on. Specifically the President received a gift(trademark) from a foreign government in return for a favorable policy. To use a colloquial phrase President Trump just SHOOK DOWN the Chinese for a Trademark License
After the abrupt resignation of National Security Adviser Gen. Michael Flynn new questions are surfacing as to whether newly minted U.S. Attorney General Jeff Sessions can impartially handle any resultant investigations. Specifically, there are valid questions as to whether as a member of the Trump campaign himself, he can impartially investigate any collusion between his former campaign colleagues and the Russians. Several media outlets have raised this question but it's yet to get the serious attention it deserves.
Rachel Maddow of MSNBC did a segment on this topic with Rep. Adam Schiff(D-CA). In the segment, Senator Chuck Schumer(D-NY) stated:"Gen. Flynn's resignation is not the end of the story, it is merely the beginning. There needs to be an independent and transparent investigation. The White House counsel cannot lead this investigation and the new Attorney General Jeff Sessions cannot be the person to lead that investigation..."
Senator Kamala Harris(D-CA) also chimed in on this issue via Twitter
Bottom line Gen. Flynn's Russian scandal raises serious national security questions that cannot be surrendered to regular Washington politicking(hyper partisan Congressional Committees). Americans will only get to the bottom of this through an independent and bipartisan committee, a sentiment already expressed by Senator Lindsey Graham(R-SC). AG Jeff Sessions cannot be an independent arbiter in any such investigations. The media should have him explain to Americans why he believes he should not recuse himself given his proximity to the subject matter.
Yours Truly is fully aware that this blog is dedicated to "Emoluments Clause" enthusiasts. Because my readers and followers on Twitter are highly intelligent, I will go ahead and preempt the inevitable question, "What does this have to do with Emoluments Clause?". Well investigations/Hearings surrounding POTUS and his campaign staffers have the potential of netting his elusive tax returns, which are crucial for the "Emoluments Clause" movement. AG Sessions is probably going to be involved with any such investigations. Consequently he is crucial to the "Emoluments Clause" movement.
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Yesterday's abrupt decision by General Michael Flynn to resign his position as National Security Adviser has thrown Washington, DC into turmoil. The turmoil is caused in large part by confirmed reports that as much as three weeks ago, Sally Yates, then Acting U.S. Attorney General had confirmed to the Trump White House that Flynn did in fact discuss U.S. Sanctions with the Russian Ambassador(a potential violation of the Logan Act) and wasn't being forthright about it. In essence the Justice Department was flashing a major "Proceed with Caution" sign to the Trump Administration regarding Gen. Flynn. The logical question now being raised by the media and the public is why such a dire warning went unheeded for weeks? The famous Watergate question comes to mind, "What did the President know, and when did he know it."?
However aside from all the political intrigue that is a staple of Washington DC, Gen. Flynn's exit provides a unique opportunity for "Emoluments Clause" enthusiasts--Americans who have clamored for an investigation into whether the President's foreign business dealings could be used to manipulate his policy decisions. This question was front and center during the recent Travel Ban when critics argued that some Muslim nations were not included in the ban list because the President had businesses there. Previous attempts to have Congress look into whether the President is violating the "Emoluments Clause" have landed on deaf ears because the President's Republican Party is in control of both Chambers of Congress(House and Senate). The only avenue left to pursue "Emoluments Clause" violations has been the U.S. Federal Courts
Gen. Flynn's abrupt exit and the serious national security questions it leaves behind will undoubtedly lead to some kind of Congressional hearings. This could potentially provide answers to the exact extent of Gen. Flynn dealings with the Russian Government. As is common with Congressional hearings, there is always an unintended revelation. Reasonable people will agree that at the very least a deep probe into Gen.Flynn's dealings with the Russians may "accidentally" give us an insight into the President's dealings with Russia too. Simply stated, it will be "Congressional Malpractice" if a Democrat Member of Congress failed to raise questions about the President's businesses in Russia. Until then "Emoluments Clause" enthusiasts can only anxiously wait.
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"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." ARTICLE I, SECTION 9, CLAUSE 8
There is a strong argument to be made that with his numerous business entanglements worldwide, U.S. President-Elect Donald J. Trump is running afoul of the Emoluments Clause. It is our duty to remain vigilant and ensure that he and other government officials are held accountable.
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