Malcolm Rivera
There are several instances where former US President Donald Trump has been accused of violating the Constitution. Trump's rapid-fire and controversial moves have demonstrated a greater willingness to violate the constitution and federal law than his predecessors, according to some historians and legal scholars. One of the most notable examples is his violation of the Emoluments Clause, which prohibits the president from receiving any profit, gain, or advantage from any foreign or domestic government. Trump's refusal to divest from his business empire and his administration's normalization of corrupt and unethical behavior have been central to impeachment investigations. Trump has also been criticized for his attempts to overturn parts of the Constitution, such as banning birthright citizenship and freezing federal spending, which undermines Congress's constitutional power of the purse. These actions have weakened the rule of law and respect for the law, with some scholars calling it a “blitzkrieg on the law and the constitution.
| Characteristics | Values |
|---|---|
| Pardoning violent criminals | Hundreds pardoned upon taking office |
| Stealing funds from programs that help Americans | Illegally taking taxpayer money from communities |
| Firing civil servants without cause | Firing public servants, inspectors general, and members of federal agencies |
| Violating anti-corruption provisions | Retaining ownership of his sprawling business empire |
| Violating the Emoluments Clauses | Accepting things of value from prohibited sources |
| Violating the Eighth Amendment | Cruel and unusual punishment |
| Violating Congress's power of the purse | Freezing federal spending |
| Violating the 1974 Impoundment Control Act | Failing to follow special procedures |
| Violating the Appointments Clause | Unconstitutional appointment of Jack Smith as special counsel |
| Violating the Freedom of Speech Clause | Unconstitutional restriction on birthright citizenship |
| Violating the Double Jeopardy Clause | Unlawful executive orders |
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What You'll Learn
Violation of the Emoluments Clause
The Emoluments Clause is an anti-corruption provision in the US Constitution that prohibits the president from receiving any profit, gain, or advantage from any foreign or domestic government. The clause is designed to prevent foreign influence on the president and protect the integrity of the US government.
President Donald Trump has been accused of violating the Emoluments Clause by retaining ownership and control of his business empire during his presidency. This decision went against long-standing historical practice and the advice of career government ethics officials. Trump's business interests, including international businesses and real estate holdings, allegedly positioned him to receive money from foreign governments, creating a potential opportunity for negative foreign influence.
Citizens for Responsibility and Ethics in Washington (CREW) sued Trump, arguing that his business entanglements violated the Emoluments Clause as it covers anything of value, monetary or non-monetary. They contended that these entanglements could sway the president and pose a creeping, insidious threat to the Republic.
In defence, the Department of Justice (DOJ) argued that an Emoluments Clause violation occurs only when the president receives compensation or gifts from a foreign country due to his official duties. They claimed that Trump had not received illegal emoluments.
While some argue that Trump's actions did not constitute a strict constitutional violation, others maintain that they represent significant violations of the spirit of the Constitution. Incidents such as the president of Ukraine patronizing Trump's business during his presidency and the government of Saudi Arabia spending large sums at his Washington, DC, hotel illustrate the potential for foreign powers to use private connections to the president's finances to curry favour.
Trump's conduct has undermined public faith in the impartiality of the government and normalized levels of corrupt and unethical behaviour. Impeachment is a potential remedy for egregious violations of the Emoluments Clause, as outlined by Alexander Hamilton in Federalist 65.
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Violation of the Appointments Clause
The Appointments Clause of the US Constitution outlines the process for appointing key government officials. It requires the President to nominate and, with the advice and consent of the Senate, appoint ambassadors, ministers, consuls, Supreme Court judges, and other officers of the United States.
President Trump has been accused of violating the Appointments Clause by appointing individuals to positions without following the proper procedures outlined in the Clause. Specifically, Trump has been criticized for appointing "acting" officials to positions without submitting nominations to the Senate for confirmation. This practice has been dubbed the "acting" phenomenon and has raised concerns about the legitimacy of these appointments.
The Constitution does not specify every person who falls under the purview of the Appointments Clause. In the 1976 Buckley v. Valeo case, the Supreme Court provided some clarification, stating that individuals wielding significant authority are considered officers. However, the Court has not elaborated further on this test, leaving the scope of the Clause open to interpretation.
Trump's use of "acting" appointments has been seen as a way to circumvent the Senate's advice and consent role, as these appointments do not require Senate confirmation. This practice undermines the checks and balances system and the separation of powers principle enshrined in the Constitution. By appointing loyalists or unqualified individuals to key positions without Senate oversight, Trump may have weakened the independence and effectiveness of government institutions.
Additionally, Trump has been criticized for his delay in appointing individuals to positions that require Senate confirmation. By keeping positions vacant or delaying nominations, Trump may have hindered the functioning of government agencies and the implementation of policies. This inaction could also be seen as a way to avoid the Senate's advice and consent role, further violating the spirit of the Appointments Clause.
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Violation of the Freedom of Speech Clause
While President Trump has positioned himself as a protector of the Freedom of Speech Clause of the First Amendment, his critics argue that his actions threaten it.
Trump's administration has targeted law firms with Democratic affiliations, stripping security clearances for lawyers who provided legal services for special counsel Jack Smith, who investigated Trump during President Joe Biden's term. Perkins Coie, a longtime Democratic firm that Trump blames for the investigation into his campaign's relationship with Russia, sued the administration to reverse the action, saying it violated the First Amendment and other constitutional guarantees.
Trump has also threatened Democratic members of Congress with investigation for criticizing conservatives, pulled federal grants that include language he opposes, sanctioned law firms that represent his political opponents, and arrested the organizer of student protests that he criticized as "anti-Semitic [and] anti-American."
Trump's executive order "Restoring Freedom of Speech and Ending Federal Censorship," issued on January 20, 2025, affirms the administration's commitment to free speech, prohibits federal officers and taxpayer resources from being used to abridge such rights, and instructs federal employees to "identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech." However, some critics have called this order a "direct assault on reality," arguing that it is an attempt to silence the president's adversaries and that his administration has clearly violated and chilled free speech on many occasions.
Trump's actions and statements regarding free speech have caused concern among some of his allies and activists. Conservative commentator Ann Coulter wrote, "There's almost no one I don't want to deport, but, unless they've committed a crime, isn't this a violation of the First Amendment?" Germán Rafael González, a member of Stanford University's Students for Justice in Palestine, also expressed dismay at the administration's actions, stating, "We learn about our First Amendment rights since we're children, but that is very much a myth. It's not the reality we live in right now, and it's scary."
In conclusion, while President Trump has made pledges and issued executive orders to protect free speech, his actions and statements have led to concerns and criticism from various individuals and organizations, including his allies, activists, law firms, and First Amendment advocates, who argue that his administration has threatened and violated the Freedom of Speech Clause of the First Amendment.
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Violation of the Double Jeopardy Clause
The Double Jeopardy Clause of the US Constitution generally forbids subsequent prosecutions for the same crime. In the past, Donald Trump has been impeached and acquitted. Some legal scholars argue that Trump cannot be convicted in Jack Smith's January 6th federal indictment because of the Double Jeopardy Clause. They contend that impeachment exhausts all legal remedies for redressability, and therefore bringing subsequent charges would violate the clause.
The Impeachment Judgment Clause of the Constitution, Article I, Sec. 3, reads: "a person convicted upon an Impeachment, shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law". However, some argue that this allows indictment only after a person has been convicted in an impeachment trial, which was not the case for Trump.
The Supreme Court has affirmed exceptions to double jeopardy, allowing separate prosecutions for the same crimes in state and federal courts. The court's ruling on this matter was that criminal defendants may be prosecuted for the same offenses in both federal and state court. This leaves people pardoned by Trump, whose pardon power extends only to federal crimes, subject to state prosecutions.
In the past, Trump has violated the Emoluments Clauses of the Constitution, which are the country's original anti-corruption laws. These clauses prohibit the president from receiving any profit, gain, or advantage from any foreign or domestic government.
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Violation of the Due Process Clause
While US President Donald Trump has been accused of violating several clauses of the Constitution, one of the most significant is the Due Process Clause. This clause, found in the Fifth Amendment, guarantees that individuals have a right to a meaningful and fair hearing, and be treated in a fair and just manner by the government.
Trump has been accused of violating this clause through his administration's actions, which have included attacking the independence of agency adjudicators and cutting their support staff. This has reduced the likelihood of individuals, particularly federal employees and immigrants, receiving a meaningful and fair hearing, and has threatened their procedural due-process rights. The Trump administration's mass restructuring of the federal government and its workforce has also been criticised as an attempt to exert political control over adjudicatory agencies, thereby threatening the due process rights of those who appear before them.
In addition, Trump's decision to retain ownership and control of his business empire while in office has been seen as a violation of the Constitution's Emoluments Clauses, which prohibit the president from receiving any profit or gain from foreign or domestic governments. This has raised concerns about corruption and unethical behaviour, further undermining the integrity of government institutions and public trust in the government.
Trump's actions have also resulted in the violation of due process rights for specific individuals. For example, the deportation of a 2-year-old American child and her mother and sister to Honduras was deemed unlawful and a violation of the child's fundamental due process rights.
These actions and incidents demonstrate how Trump's presidency has been marked by controversies and accusations of violating the Due Process Clause, among other constitutional infractions.
Key Questions to Ask About the Constitution
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Frequently asked questions
Trump has been accused of violating the Emoluments Clauses, which are the country's original anti-corruption laws.
Trump retained ownership and control of his business empire, profiting from foreign governments. This included foreign diplomats staying at his hotels and the president of Ukraine spending money at a Trump property.
The Emoluments Clauses are the Constitution's anti-corruption provisions, which prohibit the president from receiving any profit, gain, or advantage from any foreign or domestic government.
Violating the Emoluments Clauses can result in impeachment, as it is a significant breach of the public trust.
