The Emoluments Clause and President Trump
What’s the main point?
The key point is that President Trump’s continued ownership of his business empire puts him in violation of the US Constitution because his businesses receive payments from foreign governments. This is potentially an impeachable offense. All this is explained in greater detail below.
What is the Emoluments Clause?
The Emoluments Clause is a provision in the US Constitution that states, ‘no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.’ (Art. 1, sec. 9, cl. 8.)
The Founders’ concern here was potential conflicts of interest that could arise if officials were allowed to receive gifts and other benefits from representatives of foreign governments. This wasn’t just a matter of quid pro quo bribery; there were also concerns that gifts or other benefits could cloud a person’s independent, objective judgment in future dealings with the giver of the gift even if that person had not asked for anything in return.
Why is it important?
The Emoluments Clause is important because the word ’emolument,’ as used by the Founders, refers not only to gifts. It also covers compensation for goods sold or services rendered as well as other forms of payment including loans.
President Trump’s vast business empire involves many situations in which foreign governments pay money to Trump-owned business entities. His businesses have also received money from foreign-government-controlled banks in the form of loans. Even if money does not go directly to him in his personal capacity, the fact that he has chosen to retain ownership of his businesses means that payments made to one of those entities will benefit him financially in the same way that a direct payment would. The fact that he has given over management to his children makes no difference in this regard.
So this means that the Emoluments Clause is implicated, for example, whenever a foreign government official stays in a Trump-owned hotel or resort or plays golf at one of his golf courses. So too if a foreign government agency, business entity, or bank leases office or residential space or loans money to a Trump-owned business.
The President’s promise, made through his lawyer at his first press conference, to donate hotel profits to the US Treasury doesn’t go far enough because foreign funds go not only to his hotels but also other businesses. Further, the Emoluments Clause probably is not limited just to receipt of profits but probably also extends to payments of any kind. In any event, it’s hard to see how this promise can be enforced given President Trump’s unwillingness to release his tax returns and other financial records.
How is the Emoluments Clause enforced?
On January 24, 2017, a group called Citizens for Responsibility and Ethics in Washington filed a lawsuit in federal court in New York seeking an order barring President Trump and his businesses from accepting payments from foreign governments. As of February 12, the case is still pending but some observers question whether the case is viable. This is because the ‘standing’ doctrine requires that plaintiffs be able to show that they have been harmed by the violation in question. That could be hard to establish.
More likely, it will be up to Congress to enforce the Emoluments Clause through its impeachment powers. Of course, this seems unlikely at the moment, but you never know. Public pressure is important here as elsewhere. Certainly this issue should be on the already long list of things to keep in mind as we continue our communications with our elected representatives.
Technical interpretive questions
If the question of the application of the Emoluments Clause to President Trump ever becomes an actual legal controversy, you can expect his defenders to argue that it doesn’t apply to his business dealings with foreign governments.
Some have claimed that the presidency is not an ‘office’ under the Constitution, so this provision doesn’t apply to him. This is probably a weak argument. The Constitution itself refers to the presidency as an ‘office.’ Moreover, actual practice indicates a long-standing assumption that the Clause applies to the president. For example, there are several instances since the founding of presidents requesting permission of Congress to keep gifts and honors from foreign governments. As recently as 2009, the US Justice Department concluded that the Emoluments Clause applied to President Obama.
It will likely also be argued that the Emoluments Clause does not apply to payments made in return for goods or services, such as rent or hotel charges. This question is not entirely clear, but the dictionary meaning of the word ’emolument’ encompasses not only gifts but also ‘profit or gain arising from station, office, or employment: reward, remuneration, salary.’ Remuneration and salary, of course, mean money earned in return for something. More generally, the word also refers broadly to an ‘advantage, benefit, or comfort.’
For articles listing Trump business enterprises that either already do or could in the future receive money from foreign governments, see https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/09/trump-conflicts-watch/?utm_term=.5cd9954d726f&wpisrc=nl_volokh&wpmm=1 and https://www.nytimes.com/interactive/2016/12/01/us/politics/trump-conflict-of-interests.html?ref=politics
For a thorough legal analysis of the application of the Emoluments Clause to President Trump (written by two former White House ethics lawyers for Presidents Bush and Obama and also a leading scholar of constitutional law), see https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf