A $400-Million Problem: How To Close The Presidential Gift Ban Exemption

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President Donald Trump confirmed on Sunday that he intends to accept the gift of a Boeing 747-8 jumbo jet, dubbed a “Palace in the Sky” and reportedly worth $400 million, from the ruling family of Qatar.

Trump said Qatar is making a gift of the luxury jet to the United States to be used by him as Air Force One and that, at the end of his term, it will go to the future Trump presidential library, where it will presumably continue to be available for Trump’s use.

“I would never be one to turn down that kind of an offer,” Trump told reporters on Monday.

Reports estimate that the jet will cost taxpayers more than $1 billion to convert into Air Force One and the process would take years, meaning it might not even be ready for use by the time Trump leaves office and it goes to his library.

The gift from Qatar that Trump says he will accept would be a violation of the Emoluments Clause of the U.S. Constitution, Article I, Section 9, Clause 8, which prohibits the President from accepting “any present, Emolument, Office, or Title, of any kind whatever from any King, Prince, or foreign State,” without the consent of Congress. (There is no indication Trump intends to ask Congress for consent.)

But whether the Emoluments Clause can be enforced in court is unknown. In Trump’s first term, three lawsuits alleging that Trump had violated the Emoluments Clause were brought by Senator Richard Blumenthal (D-CT), who was joined by hundreds of Members of Congress; by Citizens for Responsibility and Ethics in Washington (CREW); and by Maryland and the District of Columbia.

In the case brought by the Members of Congress, the D.C. Court of Appeals ruled that they did not have legal standing and the Supreme Court did not take the case for review. The other two cases were dismissed as moot after Trump left office.

The President and Vice President are currently exempt from the gift ban that applies to others in the executive branch. The uncertainty of being able to enforce the Emoluments Clause in court requires that this exemption be restricted to prevent abuses.

Federal law comprehensively regulates gifts made to any “officer or employee” of the executive branch. The law bans all such gifts over a de minimis amount (of up to $20) given by anyone “seeking official action from, doing business with […] or conducting activities regulated by” the executive branch, or “whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.”

However, in 1992, the Office of Government Ethics (OGE) exempted the President and Vice President from the gift ban. The regulation issued by OGE at 5 C.F.R. 2635.204(j) provides:

Because of considerations relating to the conduct of their offices, including those of protocol and etiquette, the President or the Vice President may accept any gift on their own behalf or on behalf of any family member, provided that such acceptance does not violate § 2635.205(a) or (b), 18 U.S.C. 201(b) or 201(c)(3), or the Constitution of the United States.

“President Trump has made amassing huge amounts of personal wealth part of his presidential job description,” Democracy 21 President Fred Wertheimer said. “In exploiting the executive branch gift ban exemption for Presidents, Trump has made the current exemption untenable. Congress can and should fix this problem by amending the executive branch gift ban to prevent presidential abuse.”

Here is one way of dealing with the problem. Congress can revise the regulation exempting the President and Vice President from the executive branch gift ban by adding the following language to the statutory provision that grants OGE the authority to issue exemptions. 5 U.S.C. § 7353(b)(1) should be amended to read:

Each supervising ethics office is authorized to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate, provided that no such regulation shall exempt the President and Vice President from the rules that apply to any other officer or employee of the executive branch except that the President and Vice President may accept gifts of up to $10,000 in value, provided that the acceptance of any such gift does not violate § 2635.205(a) or (b), 18 U.S.C. 201(b) or 201(c)(3), or the Constitution of the United States.

(Proposed amended language underscored.)

This amendment would subject the President and Vice President to the rules and exceptions that apply to other executive branch officials, but with a higher gift limit to take account of considerations relating to the conduct of their offices, including those of protocol and etiquette.  It would prohibit by federal law outrageous gifts to a President such as the $400-million jet that is expected to be available for Trump’s personal use after he leaves office.

If Congress wants to solve the abuse of the presidential gift exemption it can do so, as is shown by this proposed amendment to the existing federal gift ban statute.

“Congress must act at the first opportunity to prevent the kind of brazen abuse of the presidential gift ban exemption that Trump is about to commit by receiving a $400-million jet from Qatar,” Wertheimer said. “Unless the rules are changed, that jet likely won’t be the last of Trump’s ‘gifts’ and presidential windfalls.”