Legality of Trump potentially accepting gift of Qatari plane questionable: Experts

Does President Donald Trump’s intended plan to accept the Qatari government’s proposed gift of a luxury plane — to use as a temporary Air Force One — violate the Constitution?

Trump insists it wouldn’t be a gift to him — but to the Pentagon — essentially bypassing the rules of the Constitution.

But Democrats and critics say it is — especially since he’d be using and benefiting from the plane while in office — and therefore the Constitution requires congressional approval, according to the “emoluments clause.”

“This is spelled out as blatantly unconstitutional by our founding fathers,” Sen. Chris Murphy of Connecticut argued on the Senate floor. “The founding fathers knew it was evil for members of Congress or the president to accept gifts from a foreign government.”

Some Republicans and experts have ethics and security concerns as well.

ABC News reached out to experts to help explain the legal questions at issue.

The ’emoluments’ clause

With few details available so far about the arrangement, experts tell ABC News it’s too early to tell if the proposed gift would violate the untested limits posed by the Constitution’s “emoluments clause” or other federal regulations.

Under the Foreign Emoluments Clause of Article I that governs the president, “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept … any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Trump and the Justice Department have claimed that the $400 million plane, after being donated to the Defense Department, would be retrofitted to use as Air Force One for the remainder of his term. The administration has not released its estimate on retrofitting the plane.

“It is a gift from a Nation, Qatar, that we have successfully defended for many years. It will be used by our Government as a temporary Air Force One, until such time as our new Boeings, which are very late on delivery, arrive,” Trump said in a social media post Tuesday night defending the idea.

Sources told ABC News that the plane would be decommissioned and turned over to the Trump presidential library after he leaves office, although Trump and his officials have not confirmed that publicly.

Attorney General Pam Bondi and Trump’s top White House lawyer David Warrington concluded it would be “legally permissible” for the donation of the aircraft to be conditioned on transferring its ownership to Trump’s presidential library before the end of his term, according to sources familiar with their determination.

Bondi provided a legal memorandum addressed to the White House counsel’s office last week after Warrington asked her for advice on the legality of the Pentagon accepting such a donation, according to sources.

Trump might have muddied the controversy by saying he would accept the gift. He has not said in his posts or public comments that he intends to keep the plane.

“Some people say, ‘Oh, you shouldn’t accept gifts for the country.’ My attitude is, why wouldn’t I accept a gift? We’re giving to everybody else, why wouldn’t I accept a gift?” he told Fox News host Sean Hannity on Tuesday.

Dan Weiner, director of the elections and government program Brennan Center for Justice, said it is imperative for the administration or Congress to nail down the specifics of the arrangement.

“It’s a different story if he uses the jet when he’s president and then it goes to some museum that he has some control over,” Weiner told ABC News.

Such gifts can be approved by Congress, but in most cases, those gifts aren’t used for private matters, according to Weiner.

“For example, a foreign country could donate a valuable painting and the president could hang it up in the White House, but generally it would have to stay there to comply with the law,” he said.

Weiner said that despite the security and ethical violations posed by use of the Boeing 747 as an official government plane, there isn’t a constitutional violation if Trump sticks to just using the plane as the new Air Force One.

“You can question the wisdom of accepting a plane that would have to be reconfigured for the president to be used a year or two to then be put in a museum, but if it continues to be used as a government plane [after Trump leaves office] that would not pose an emoluments violation,” he explained.

It’s a different matter, he said, if Trump has access to it after he leaves office — or uses it for purposes other than as Air Force One.

“I cannot see any legal way for Trump to keep that plane for personal use without congressional approval,” he added.

White House press secretary Karoline Leavitt told reporters Monday that “the legal details of [the gift] are still being worked out.”

“But, of course, any donation to this government is always done in full compliance with the law. And we commit ourselves to the utmost transparency and we will continue to do that,” she said.

A spokesperson for the Qatari government said Sunday that the transfer of an aircraft for “temporary use” as Air Force One is current under consideration by Qatar’s Ministry of Defense and the U.S. Department of Defense.

Jessica Tillipman, associate dean for Government Procurement Law Studies at The George Washington University Law School, who has specialized in foreign corruption cases, told ABC News that Trump has tested the emoluments clause several times during his first administration over his business interests abroad and was never hit with any violations.

There is no litigation over the proposed gift yet, but she said Trump’s Supreme Court win in the presidential immunity case might have emboldened him to want to accept the gift.

“The Supreme Court has made it a lot harder to prosecute federal officials on corruption or the president. The details are still coming through, and that’s what makes it dicey,” she said.

Right now, Tillipman contended that one of the few avenues to make sure the administration stays within the law is through political pressure.

“It will be interesting to see the remaining few tools that Congress has and if they go and use them,” she said, about possible legal challenges.

Congressional concerns

After news of the proposed gift came out, Democratic congressional leaders blasted the idea, with some calling the proposed gift “unconstitutional” and “a bribe.”

Senate Minority Leader Chuck Schumer vowed to put a hold on Trump’s judicial nominees and sent a letter to Attorney General Pam Bondi that sought answers to the gift, including security questions.

Sen. Adam Schiff D-Calif, also requested the Defense Department’s inspector general probe the agency’s role in “facilitating and serving as a pass-through” in the proposed gift.

While Republicans were not as vocal, many notably said they had questions over the deal.

Senate Majority Leader John Thune, a South Dakota Republican, called the gift a “hypothetical” but did acknowledge the concerns over its legality and safety.

North Carolina Republican Sen. Thom Tillis also said there would be “plenty of scrutiny” over the gift.

“There are lots of — lots of issues around that that I think will attract very serious questions if and when it happens,” Tillis told reporters Tuesday.

Asked about the constitutionality of Trump accepting the plane as a gift Tuesday, House Speaker Mike Johnson said. “Clearly, I think the intent of the emoluments clause is that you don’t get personal gifts for personal use and all of that.”

“It’s a gift to the United States and other nations give us gifts all the time, but I am going to leave it to the administration. They know much more about the details. Okay, it’s not my lane,” Johnson said Wednesday, adding that Trump was not trying to conceal anything.

Tillipman and Weiner said the continued pressure from the public will be the true test.