In our putrid, take-no-prisoners politics, the Constitution’s prohibition on accepting foreign “emoluments” is the weapon du jour in the war on Trump. The president faces multiple lawsuits brought by prominent liberal law professors, the attorneys general for Maryland and the District of Columbia, and, most recently, 196 Democratic members of Congress.
Trump’s opponents claim that every time, say, a foreign diplomat books a room in a Trump hotel or pays for a meal in a Trump restaurant, the Constitution is violated. They seek to force the president to sell off all his holdings and demand disclosure of his tax returns to track foreign payments.
Before assuming office, President Trump disposed of his publicly traded and liquid investments. He put his illiquid assets (e.g., hotels, golf courses, and commercial properties) into a trust. He further resigned from all official positions with the Trump Organization and turned over management of the businesses to his adult sons. None of this is enough for his enemies.
The Constitution’s foreign-emoluments clause provides that no federal official “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.”
Borrowed from our first national constitution, the Articles of Confederation, the foreign-emoluments clause has two purposes. First is the preservation of republican simplicity. Titles of nobility create castes within society where title holders receive honors and privileges above those of ordinary citizens. This was not to be the case in the United States. As the great Virginia legal scholar St. George Tucker (1752–1827) observed: “Washington in retirement was equal, and only equal, in rights, to the poorest citizen of the state.” Washington’s natural nobility shone forth, but not because of any title granted to him.
The second purpose behind the clause is protection of the government from foreign influence. Neither the government under the Articles of Confederation nor that under the U.S. Constitution wanted federal officers to be corrupted by receipt of expensive gifts or high-paying “side jobs” offered by foreign governments. The Founders knew their history and recalled how Charles II, although serving as the king of England in the 17th century, was little more than a puppet of Louis XIV because of a pension he received from France.
Presents, offices, and titles we understand. But the term “emolument” is not in our modern vocabularies. In his first inaugural address, George Washington used the term as synonymous with government salary when he refused “any share of the personal emoluments, which may be indispensably included in a permanent provision for the Executive Department.”
The term ‘emolument’ is not in our modern vocabularies. In his first inaugural address, George Washington used it as synonymous with government salary.
In Hoyt v. United States (1850), the U.S. Supreme Court defined emolument as “embracing every species of compensation or pecuniary profit derived from a discharge of the duties of the office.” Accordingly, President Trump argues that “emolument” must be understood as a prohibited benefit arising from the services a federal officer provides to a foreign power, either on account of his office (making a decision favorable to a foreign government for pay) or as an employee/agent of the foreign power. He further argues that the foreign-emoluments clause does not prohibit his companies from engaging in market transactions on the same terms as any other citizen or private business.
Early presidential practice supports the president’s interpretation. Presidents Washington, Jefferson, Madison, and Monroe all owned massive plantations and sold agricultural commodities in Europe. Undoubtedly, some of their customers were foreign governments, but no political opponent ever raised the specter that they were violating the foreign-emoluments clause.
President Trump’s opponents, on the other hand, seek to define emolument as the receipt of anything of value by the Trump Organization from any foreign country, with no distinction made for arm’s-length commercial transactions. To them, there is no difference between a foreign diplomat paying for a steak dinner at a Trump restaurant and a foreign diplomat paying the president a bribe for favorable treatment.
Alas, Trump opponents, still wincing from the 2016 election, are undertaking constitutional litigation and making strained arguments solely to embarrass and harm him. They apparently haven’t learned the lesson that public disgust with give-no-quarter politics, in part, led to the defeat of Establishment candidates in both the Republican primaries and the general election.
The emoluments litigation is likely to backfire, especially for many of the 196 members of Congress involved. How can anyone take congressional whining about possible corruption seriously when Congress as a body has sold its collective soul to special interests and is pushing our national debt to the $20 trillion mark?
The American people will surely see the lawsuits for what they are: a desperate effort to preserve the fetid conditions of the swamp by hindering an elected agent of reform.