The plaintiffs in Citizens for Responsibility and Ethics in Washington v. Trump argue that President Trump has violated the Foreign Emoluments Clause, which reads in part: “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 plaintiffs say the current president is in violation because he does business with foreign governments.
But the evidence is that the Foreign Emoluments Clause was never meant to apply to the president, and the consequence is that the plaintiffs’ case should be a non-starter. Legal scholars Seth Barrett Tillman and Josh Blackman have filed amicus briefs in multiple courts making that argument, noting that “our Founding-era presidents openly received diplomatic gifts from foreign governments” and pointing to a document drafted by Alexander Hamilton that left the president off an exhaustive list of officeholders. While the clause applies to “appointed officers,” they say, it does not apply to “elected officials.”
Tillman and Blackman’s position is backed by the evidence. But some liberal law professors have argued against them on the basis of other historical documents (apparently rediscovering the value of originalism). Their arguments, however, have ranged from the dishonest to the tendentious.
Before today, the Department of Justice had not acknowledged Tillman and Blackman’s position. In 2009, the DOJ wrote an opinion saying that the clause “surely” applied to the president. Now, it appears to be shifting its stance: In a letter sent to the judge overseeing the case, Justice Department attorney Brett Shumate wrote that “the government has not conceded that the President is subject to the Foreign Emoluments Clause.”
The government wants to dismiss the lawsuit, and has attacked the plaintiffs on other grounds including their standing to bring the case. But even if CREW v. Trump proceeds, the scholarship of Tillman and Blackman makes it clear that the plaintiffs have misinterpreted the Constitution and that the Foreign Emoluments Clause does not apply to the president. If it is indeed nodding to their work, the DOJ is headed in the right direction in this case.