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 there’s evidence that the Foreign Emoluments Clause was never meant to apply to the president, and the consequence would be 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.”
Some law professors have argued against Tillman and Blackman on the basis of other historical documents. And before today, the Department of Justice was on those other professors’ side. 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, Tillman and Blackman bring a compelling case that the plaintiffs may have misinterpreted the Constitution and that the Foreign Emoluments Clause does not apply to the president. Good on the DOJ for considering it.