Since the moment President Donald Trump finished his oath of office on Friday, some ethics experts argue he’s been violating the Constitution.

The breach stems from the massive conflicts of interest between his presidency and his business empire. Trump has a huge stake in a real estate holding underwritten with a loan from the Chinese government. He has tens of millions of dollars riding on building projects in Saudi Arabia. Foreign diplomats have already admitted to spending money at his hotels to curry favor with the president.

Trump has said that the president is exempted from the federal conflict-of-interest regulations that usually bind elected officials — and he’s right about that.

But that answer misses another big barrier presented by Trump’s clinging to a sprawling business empire: that it will directly violate the Constitution, which says no elected official can take an “emolument” of “any kind whatever” from a king, prince, or foreign state. The restriction, known as the emoluments clause, is intended to prevent political officials from receiving gifts from foreign governments.

Trump is putting himself on a course to do exactly that. The president-elect rode to office promising to “drain the swamp” and tamp down on corruption in Washington. At least in the eyes of legal scholars, he instead looks poised to begin his presidency by breaking the highest law of the land for private gain.

And unless the Republican Party wants to do something about it, there’s basically nothing standing in his way — even though outside groups are trying their hardest with a legal challenge.

Why scholars think Donald Trump is on course to break the Constitution’s emoluments clause

There isn’t total agreement among scholars on the question of whether Donald Trump would be violating the Constitution by allowing foreign governments (and companies backed by foreign governments) to do business with his private company.

But top ethics experts from both the Bush and Obama administrations have argued fervently that he is. At issue is the meaning of the emolument clause of the Constitution in Article I, Section 9. An “emolument” refers to compensation for a service or labor, which raises the question of whether foreign payments to Trump-owned businesses constitute forbidden emoluments.

On its own, scholars say, simply having his businesses continue to interact abroad may not necessarily mean Trump is running afoul of the Constitution. One issue is that no American president has ever had anything close to resembling Trump’s international business ties.

Previous discussions of whether earlier presidents have violated the clause have been much more limited — such as when three Republicans in Congress told President Barack Obama in 2009 that he’d need Congress’s permission to accept the Nobel Peace Prize, which they viewed as an emolument. (The White House considered the question and decided it did not qualify.) So there isn’t any real case law or precedent for knowing how the courts would interpret the clause, since previous presidents have voluntarily chosen to invest their assets so that the issue doesn’t arise.

“Trump’s just dropped out of the sky here, and we don’t know what happens when someone does that,” says Bob Biersack, a senior fellow at the Center for Responsive Politics.

But Richard Painter, a constitutional lawyer and George W. Bush’s former ethics lawyer, told ThinkProgress that the instant Trump’s business sells anything above “fair market value” to a foreign government, it’s then clearly considered a gift — and therefore a violation of the emoluments clause. (This was the same answer given to the Times by Norman Eisen, who was the chief White House ethics lawyer for Obama from 2009 to 2013. It’s also one three separate experts agreed with in interviews with me in November.)

There’s almost no way to imagine that this won’t happen under the current arrangement. Trump’s wide-ranging business will involve thousands of interactions across multiple countries, and in countries whose foreign governments will have clear incentives to curry favor with the president. We’d have to believe that not a single one of them will ever do something that disproportionately helps Trump’s private business — an idea that doesn’t pass the laugh test.

“It’s clearly prohibited,” says Steven Schooner, a George Washington University law professor.

“The president cannot get a gift from a foreign government,” says Jordan Libowitz, of the watchdog group Citizens for Responsibility and Ethics in Washington. “And it looks like he’s going to do exactly that.”

Painter also told ThinkProgress that the president-elect’s name may alone jack up the “fair market value” of a property. Therefore, Trump products may already be considered a violation of the emoluments clause even if there’s no direct proof that the foreign governments paid more than some abstract fair market rate:

Painter said, “I don’t think you can take into account the value of the name Trump in calculating fair market value.” The diplomats are not staying in one of Trump’s expensive luxury hotels because Trump is charging their nations a reasonable market rate for a night’s stay. They are staying in the hotel because of the added value that comes from doing business with the President of the United States.

One dissenter from this consensus has been Seth Barrett Tillman, a lecturer at the Maynooth University Department of Law in Ireland. Tillman has argued that Trump isn’t on the hook here because the Constitution doesn’t specify that the president is subject to the emoluments clause — an argument that both Fordham University law professor Zephyr Teachout and Harvard’s Laurence Tribe, who worked on a lawsuit arguing Trump is violating the emoluments clause, have dismissed.

Others have argued that the emoluments clause is clearly intended to be about gifts, and that merely having foreign investments does not appear to have been something the founders were particularly concerned with.

“This constitutional provision prevents the president (and any other federal officer) from accepting gifts or compensation from foreign states,” David B. Rivkin Jr. and Lee A. Casey, two former George H.W. Bush administration officials, wrote at the Washington Post in November. “It does not limit Trump’s ability to benefit from dealings with non-state foreign entities.”

Trump has an easy way out if he wants it — but he doesn’t seem to

There is a solution to this mess, one Trump could easily find by looking at the actions of his predecessors.

In 2008, Barack Obama decided to liquidate his assets and convert them into Treasury bonds and index funds. Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush all placed their assets in a blind trust. Even Jimmy Carter insisted on turning his Georgia peanut farm over to a trustee.

Instead, Trump’s campaign has said that he’s going to turn his company over to a “blind trust” managed by his kids.

The problem is that this setup isn’t even in the same universe as a blind trust. The Trump children will certainly be in touch with Trump, if not serving informally or even formally in his administration. But even if we grant him that having his kids run the enterprise is a meaningful act of separation, there’ll be nothing “blind” about it — Trump’s name is emblazoned all over his buildings and hotels, and so it will be visible to everyone whether a foreign government can help his private business.

“He’ll be able to know exactly which countries are helping his company,” says John Wonderlich, interim director of the Sunlight Foundation.

Trump’s solution to the problem was to have a lawyer argue in January that, first, he would not be violating the emoluments clause, and second, just to avoid the issue, he will donate the profits he makes from foreign stays at his hotels to the US Treasury. It’s far from clear how this will work, and ethics experts found it insufficient. Trump’s emoluments aren’t limited to hotel profits; they could also include construction permits abroad, royalties from The Apprentice being aired on state-owned television stations, and so on.

The Constitution also doesn’t carve out an exemption if you get something of value from a foreign state and then donate it.

There is probably no judiciary remedy

So Trump has very likely run afoul of the Constitution — what happens now?

The Center for Responsibility and Ethics in Washington, a watchdog group, filed a lawsuit against Trump, hoping to get a court to rule that he is in violation of the emoluments clause. (Eisen, Painter, Tribe, and Teachout are all representing the plaintiffs.) But even if the courts allow the suit to proceed — and it’s not clear the group has standing to sue — the ruling might not force Trump to sell his businesses. Complicating matters, the Supreme Court has a tradition of declaring certain matters to be “political” and not subject to litigation.

If Congress wants to enforce the emoluments clause against Trump, they could pass some specific legislation enabling judicial enforcement of its terms, or it could be used as grounds for impeachment. But as New York magazine’s Eric Levitz notes, “It’s highly unlikely that Paul Ryan is going to lead an impeachment effort against a president who is more popular with Republicans than he is.”

Of course, things could change after the 2018 midterms. But until then, Levitz writes, “it’s very likely that President Trump will comply with all applicable rules and regulations — and shape domestic and foreign policy around his own business interests in the process.”