President Trump’s Conflict of Interest and the Original Meaning of the Emoluments Clause

By Neil Banerji (Knox College)

In light of heated public debate, popular opinion is divided as to whether President Donald J. Trump retaining ownership of his various corporations upon assuming office violates the Constitution’s Emoluments Clause. Law professors, state attorney generals, and Democratic legislators alike have enthusiastically filed major lawsuits against President Trump alleging that foreign governments are exerting undue influence on his person when he accepts their financial gifts & benefits through business deals.[1] The issue is incredibly significant in that it asks as to whether a sitting president can accept financial gifts from foreign governments. While the answer to this question seems obvious at first glance, the situation is far more nuanced. To properly understand whether the president’s actions actually violate the Emoluments Clause, one must first consider the original meaning, original intent, and historical background of the clause itself.

The Emoluments Clause states “No Person holding any Office of Profit or Trust under them [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.”[2] The clause was originally intended to prevent the bribery of American diplomats by foreign states and people. In 1787, Charles Pickeney, one of the Constitution’s signers, urged that the clause should be added so America would be free of external influence. Alexander Hamilton noted in Federalist 22 that republics, inherently, were easily susceptible to “foreign corruption.”[3] A delegate to the Constitutional Convention perceived the clause as a key check against foreign bribery.[4] Overall, the Framers were wary of a foreign power weakening the republic’s stability by paying off its most important government officials. They recalled that the British king Charles II was a pawn of the French king Louis XIV because of the massive sums that he received from France.[5] Historically speaking, presidents have always sought the consent of Congress before accepting a gift from a foreign power in line with the words of the clause itself.[6] Nonetheless, some of the presidents from the Founding era also owned businesses while in office. Presidents like Washington and Jefferson maintained large plantations, and foreign persons were found to be involved in business dealings concerning their properties. In his First Inaugural Address, Washington himself referred to the term “emolument” in similar terms as a government salary. However, none of their opponents accused them of violating the Emoluments Clause.[7] At the same time, a number of state constitutions from the Founding prohibit foreign bribery of American officials and define it in the broadest terms possible.[8]

The Department of Justice’s (DOJ) fundamental argument for the President is that emoluments are defined by the gifts that a government official receives for actions that he/she undertakes on behalf of a foreign power in the course of his/her professional duties. The Emoluments Clause does not prevent companies owned by Trump from conducting business dealings with sovereign governments like other individual citizens or private corporations.[9] This interpretation seems to fall in line with the Supreme Court’s decision in Hoyt v. United States, which defined emoluments as “embracing every species of compensation or pecuniary profit derived from a discharge of the duties of the office.”[10] Based on past opinions put forth by the DOJ’s Office of Legal Counsel and Comptroller, the plaintiffs responsible for the lawsuits against President Trump construe the Emoluments Clause in very broad terms.[11] They would mistakenly accuse any president of violating the clause by receiving foreign gifts while in office. Andy Grewall, a professor of law at the University of Iowa, shares this view noting that emoluments in the Founding-era strictly covered financial matters related to the holding of an office.[12] Even if this is true, according to those very same opinions, the DOJ’s understanding of the Emoluments Clause is also too narrow. Samuel Alito, a lawyer for the Office of Legal Counsel at the time when one opinion on the breadth of the clause was released, observed “The answer to the Emoluments Clause question . . . must depend [on] whether the consultancy would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition.” It would seem that the Office of Legal Counsel would not approve of a president receiving foreign money based on connections to his office.[13]

In general terms, the opinions by the Office of Legal Counsel and Comptroller do not approve of consistent business gains that a president may enjoy due to the prestige of his office, but, in certain circumstances, he can also receive money from foreign entities as long as he is not subject to manipulation while in office. In other words, the financial benefits that a president can receive from foreign institutions/persons must have nothing to do with the functions and responsibilities of his office. However, the most pressing issue associated with President Trump’s supposed violation of the clause is whether his actions fall in the former rather than the latter category. The answer to the question of whether President Trump’s actions violate the Emolument Clause depends on the facts of the case itself.  If the courts determine that Trump directly receives greater financial profits from foreign countries due to the prestige, functions, or responsibilities of his office, he should be found guilty of violating the Emoluments Clause based on recent case law/ legal literature on the subject.

 

 

[1] http://www.politico.com/blogs/under-the-radar/2017/08/09/trump-emoluments-lawsuit-schedule-241443

[2] Article 1, Section 9, Clause 8

[3] http://www.constitution.org/fed/federa22.htm, https://www.theusconstitution.org/sites/default/files/The_Text_and_History_of_the_Foreign_Emoluments_Clause.pdf

[4] Robertson, David (1805). Debates and Other Proceedings of the Convention of Virginia (2d. ed.). p. 345.

[5] https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

[6] https://www.nytimes.com/roomfordebate/2016/11/17/would-trumps-foreign-business-ties-be-constitutional/trumps-foreign-business-ties-may-violate-the-constitution

[7] http://www.nationalreview.com/article/448993/donald-trump-emoluments-clause-no-violation, https://founders.archives.gov/?q=emolument%20%20Author%3A%22Madison%2C%20James%22&s=1111311113&sa=&r=12&sr=

[8] http://avalon.law.yale.edu/18th_century/pa08.asp, http://avalon.law.yale.edu/18th_century/virginia.asp, https://founders.archives.gov/?q=emolument%20Author%3A%22Adams%2C%20John%22&s=1111311113&sa=&r=31&sr=

[9] https://www.documentcloud.org/documents/3862230-2017-6-9-350862663-Trump-Motion-to-Dismiss.html

[10] Hoyt v. United States, 10 How. 109 (1850), 135.

[11] http://www.gao.gov/products/B-122100#mt=e-report, https://www.justice.gov/file/22681/download, https://www.justice.gov/olc/page/file/935721/download

[12] Grewal, Andy, The Foreign Emoluments Clause and the Chief Executive (January 19, 2017). Minnesota Law Review, Vol. 102, December 2017; U Iowa Legal Studies Research Paper No. 2017-15. Available at SSRN: https://ssrn.com/abstract=2902391

[13] Emoluments Clause Questions raised by NASA Scientist’s Proposed Consulting Arrangement with the University

of New South Wales (May 23, 1986) http://www.politico.com/f/?id=00000158-b547-db1e-a1f9-ff7f60920001

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