When the Framers of our national Constitution included the Foreign Emoluments Clause, they did so as a prophylactic against government corruption, but they provided no specified remedy for violations the clause. In this brief essay, we evaluate the viability of an equitable remedy borrowed from the private law of trusts—specifically, the constructive trust—as a potential retrospective remedy for such violations by a President. We first provide context by reviewing the legal claims and requests for relief in three lawsuits currently pending against Donald J. Trump alleging multiple and ongoing Emoluments Clause violations. We then turn to the doctrines governing the imposition of a constructive trust, first in the context of private fiduciary relationships, and later as a response to government officials’ breaches of duties owed to the public. Drawing on the rationale underlying the application of the constructive trust in these contexts, we argue that a court, in the exercise of its equitable jurisdiction, would be justified in finding that the violation of the Foreign Emoluments Clause by a sitting President creates a constructive trust for the benefit of the public treasury when the violation yields personal profit or gain to the President, even if such profit does not result in financial loss to the United States.
Kimberly Breedon, A. Christopher Bryant, The Brand v. The Man: Considering a Constructive Trust as a Remedy for President Trump's Alleged Violations of the Foreign Emoluments Clause, 9 ConLawNOW 111 (2018)