“Against the insidious wiles of foreign influence, (I conjure you to believe me fellow citizens) the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government.”
– George Washington, 1796 Farewell Address
Emoluments. You’ve probably heard that in the news recently. It’s one of the many stories being tossed around in the media (and on social media). Trump is going to violate the Constitution on his first day in office. Trump’s unwillingness to fully divest himself from his businesses and their interests and dealings has sparked debate about the Foreign Emoluments Clause of the Constitution, including what it means, who it applies to, and what happens if it is violated.
The Founding Fathers strongly desired to protect the Republic, as evidenced by text such as the Foreign Emoluments Clause, from undue influence foreign entities might exert on the nation’s preeminent leader. In Federalist 22, Alexander Hamilton explained a substantial danger that would exist in the new Union. He wrote, “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” Bribes from foreign states to individuals such as the President, whether via direct payment, gift, or other means such as giving preferable treatment to their business(es), present a grave threat to the very existence of a republican form of government.
The Constitution actually contains three separate references to “emoluments.” Article I Section 9 Clause 8 is the portion of the Constitution that President-Elect Trump is at risk of violating. This clause, known as the Nobility Clause, the Emoluments Clause, or, as I will refer to it, the Foreign Emoluments Clause, states:
“No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, 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.”
The second part of the clause is what we are particularly concerned with. To determine if Trump will violate this prohibition, we need to break down the clause into its elements so that we can determine if his situation meets the clause’s requirements. The Foreign Emoluments Clause has five distinct elements:
- Holding any office
- Of Profit or Trust
- Under them (the United States)
- Without the consent of the Congress
- Accept any present, emolument, office, or title, of any kind whatever
- From any king, prince, or foreign state
Let’s consider each of these in order. Trump is clearly a person. Whether he has any sense of humanity or compassion typical of a person is another issue. But he does fulfill the first element.
Turning to the second, and surprisingly most complex, of the five elements. The Foreign Emoluments Clause prohibits any person “holding any office of profit or trust under them [the United States]” from accepting any emolument from a foreign state. Obviously, Trump will hold the Office of the President starting January 20th and because the other elements are fulfilled, he will violate the Constitution on the very day of the inauguration, right?
Well, not necessarily. Legal principles for the construction of statutes and constitutions require us to consider the word choice, syntax, and context to the phrase in question. As it turns out, the words “Office” or “Officer” are used in multiple ways throughout the Constitution. The question is, are there structural differences (i.e. each type of phrasing has one particular definition) or is there only one meaning to “Office” or “Officer.” If there is only one meaning, then this element of the Foreign Emoluments Clause is met because the President clearly holds an “Office,” as the first two sentences in Article II are “The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years….”
But what if the phrasing of each reference to “Office” has a meaning unique to itself? Well, then the President must hold an office according to its definition in the Foreign Emoluments Clause. In the Constitution, there are five distinct varieties of “Office” or “Officer” in the Constitution:
- “Office” / “Officer” (general)
- “Office of the United States”
- “Office under the Authority of the United States”
- “Office (of honor, trust, or profit) under the United States”
- “Public Trust”
This list has been adapted from an article written by Will Baude which summarized Seth Barrett Tillman’s Constitutional Law scholarship.
For our purposes, the question is: does the President hold an “Office (of honor, trust, or profit) under the United States” as stated in the Foreign Emoluments Clause. In the absence of case law to guide our analysis (Presidents thus far have been deliberate and careful to insulate their private interests from their public ones), we must rely on the surrounding verbiage of the Constitution to gain an understanding of what this phrase means. To do this, let’s consider two clauses from the Constitution:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
– Article II Section 4
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
– Article I Section 3 Clause 7
Article II Section 4 indicates that the President is among those individuals who will be removed from office if impeached. Article I Section 3 Clause 7 states that if an individual is impeached, they are removed from office and disqualified from holding “any Office of honor, Trust or Profit under the United States.” Though not an ironclad connection, it is difficult to conceive why the Founding Fathers would find it acceptable to require that a President be removed from office upon impeachment but then would be permitted to retake office if elected again. The two clauses best fit together if the Office of the President is an “Office of… Trust… under the United States.”
I should note that my argument drives against a piece of significant scholarship on the topic. Seth Barrett Tillman has argued that the phrase “Office… under the United States” refers to those offices that are created and regulated by federal statute, which elected offices such as the President are not. Here is a Washington Post article introducing the scholarship. At the end of this article you will find a summary of and links to some of Mr. Tillman’s scholarship.
The third element of the Foreign Emoluments Clause appears to be met. Congress has not given its consent to Trump to accept payments from foreign states for his businesses’ services. Trump has suggested that donating any such revenue to the Treasury would be sufficient. However, based on the text of the Foreign Emoluments Clause, this is clearly not the case. The clause strictly prohibits the acceptance of emoluments and does not suggest that any action subsequent to acceptance is sufficient to nullify the violation.
Additionally, this clause cannot be read as suggesting that Congress need expressly prohibit a President from accepting emoluments from foreign entities. If that were the case, then the clause would have no meaning whatsoever and thus would be unnecessary. The rules of statutory and constitutional construction require that clauses be read in such a manner as to add something meaningful to a full understanding of the law. If the clause requires express action from Congress, then it is no different than if the clause were not in the Constitution at all. With the failure of Congress to grant specific permission to Trump to continue to gain income from his businesses, the third element of the Foreign Emoluments Clause is met.
The fourth element of the Foreign Emoluments Clause hinges on the definition of “emoluments.” The clause prohibits the acceptance of “any present, emolument, office, or title.” Based on the vague and convoluted statements he has made about his businesses and their dealings, Trump is not accepting any present, office or title. Rather, the potential issue is profits generated from business services. Do payments for business services constitute “emoluments?”
There are two United States Supreme Court cases addressing an emoluments reference in the Constitution: Schlesinger v. Reservists Comm. to Stop the War, 418 US 208 (1974) and Ex parte Levitt, 302 US 633 (1937). Both cases ultimately turned on the issue of standing to sue, and not on their merits. Additionally, limiting their usefulness for our purposes, the cause of action in the case was not based on the Foreign Emoluments Clause, but rather on Article I Section 6 Clause 2 of the Constitution. This clause states:
“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”
In writing the Court’s opinion in Schlesinger, Chief Justice Warren Burger summarized the cause of action in Levitt which clearly equated the maintenance of a higher salary with increasing “the emoluments of the office.” Schlesinger at 219. Of course, this explanation is merely dictum and not binding upon any court. Therefore, more authority is needed to better grasp the meaning of “emoluments.”
Since there is no guiding case law on the matter, the next place to turn would be to Black’s Law Dictionary. The second edition of Black’s Law Dictionary defines an emolument as “the profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office as salary, fees, and perquisites; advantage; gain, public or private.” This definition is consistent with its use by Chief Justice Burger in Schlesinger. Profits made by Trump Organization almost certainly constitute a private gain, and thus an emolument, for Trump.
Even if the Foreign Emoluments Clause requires something more than “gain,” such as “compensation for services,” to qualify as an emolument, profits Trump Organization makes from foreign entities still likely satisfies the definition. An example is the use of Trump’s name on enterprises around the globe. Businesses, some of which are owned by foreign states, pay Trump Organization for the ability to use Trump’s name for their businesses. Although this seems sufficient to fulfill the “emoluments” element of the Foreign Emoluments Clause, there still remain many questions about the issue.
Where are the emoluments coming from? The fifth element requirements that they be given by “any king, prince, or foreign state.” Although we have not been made privy to specifics, Trump has assured us that he has business dealings all over the world. Presuming that we can take his word for that (which is no easy feat), the fifth element of the Foreign Emoluments Clause has been met.
Based on the text of the Constitution and the Foreign Emoluments Clause, there is a reasonable argument to be made that Trump will be violate the Constitution as soon as he receives his first business payment from a foreign state. However, this conclusion is reliant upon a particular interpretation and understanding of the Constitution. In the absence of clear and applicable authority from the Supreme Court (or really any court), these circumstances are open to a variety of applications of the law. What remains clear is that regardless of the letter of the Constitution, Trump will certainly be violating its spirit. That is what matters more than anything else.