I have had several friends ask me for thoughts on whether
President Trump’s business dealings with foreign countries violates the
Emoluments Clause of the U.S. Constitution.
Both as Air Force General Counsel and in private practice, I have
actually had to give legal advice on the meaning and scope of this provision of
the Constitution. It most often comes up
when retired military members (who are still considered officers of the United
States) accept jobs with foreign governments.
As I detail below, the legal issue here--whether business transactions
with foreign governments violates the Emoluments Clause--is unsettled There are two competing theories, both of
which focus on the meaning of the word “emolument.”
One beginning word of caution: while those who oppose Donald Trump will find
attractive any argument that can be used to defeat him, this issue will affect
many others as well. While the Emoluments Clause might seem obscure
to many, this provision is not at all obscure to the over 2 million military
retirees and 2.8 million federal employees.
They are subject to the Emoluments Clause, and the issue of the
Emoluments Clause could have consequences for federal employees and retirees. For example, if the Trump Organization’s
sales to foreign governments gives rise to an Emolument, this would also be
true of a small veteran owned business that makes sales to foreign
governments--which is not that rare in the government contracting world.
The Emoluments Clause, U.S. Constitution, Art. I § 9, cl. 8
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.
While there is actually some argument that the President
is not a person holding an “Office”, that argument is rather esoteric, and is
inconsistent with the views expressed by the Office of Legal Counsel over the
years (including most recently, an opinion about whether President Obama’s
acceptance of the Nobel Peace Prize would violate the Clause). The real argument is whether the profit or
revenue gained from a bone fide business transaction with a foreign government
is an “Emolument.”
There are two views based on the definition of
emolument. The first, more narrow view,
is that an emolument is something of value you gain from employment or personal
service. As the Office of Legal Counsel
has explained, and as the Oxford English Dictionary teaches, the word
“emolument” is primarily defined as “profit or gain arising from station,
office, or employment: reward, remuneration, salary.” Under this view, business transactions fall
outside the definition because they do not result from employment or
office. Professor Andy S. Grewal of the
University of Iowa has an excellent article outlining this view.
The second, broader view advanced by Larry Tribe, Norman
Eisen and Richard Painter in a Brookings Institution paper is that given the history of this provision--which
was intended to prevent foreign influence over federal officers, a broad
definition is appropriate. Thus, while
they admit that the primary meaning of emolument is payment or reward you get
from employment or office, they argue that we should look to an older, secondary meaning of
emolument: “advantage, benefit,
comfort.” Under this definition, even
legitimate business transactions are covered
because they provide a benefit to the officer.
While I think Tribe, Eisen and Painter make a compelling
historical case for the broad view, their view is not consistent with how the
Emoluments clause has actually been enforced in cases under the Emoluments
Couse (largely involving military retirees and employees). Indeed, when I worked on Emoluments issues
before Trump was elected, I had always taken the employment-focused view. This
is because the two authorities that opine on the Emoluments Clause (Office of
Legal Counsel and the Comptroller General) have consistently relied on the
narrow, primary definition in their numerous opinions on this issue. And more to the point, they have opined that
it does not violate the Emoluments Clause if an officer works for a corporation
that provides goods and services to a foreign government. This is because the Emoluments Clause applies
to natural “persons”, and if it is a corporation that receives revenue from a
foreign government, its employees are not in violation of the Emoluments
Clause. The Office of Legal Counsel has
opined that the Emoluments Clause comes into play in these circumstances only
when the corporation is a “mere conduit” for the employment of the officer. To be fair, however, I am not aware of any
case brought to the Office of Legal Counsel that raised the extensive foreign
business involvement of the Trump Organization.
What I find curious is that no one has focused on another
key element of the Emoluments Clause. It
expressly allows Congress to consent to an emolument. Congress has done so for most retirees and
officers by enacting a statute that consents to all emoluments approved by
agency heads. Such approval is routinely
granted in many circumstances. I wonder
if Congress would consent to President Trump’s emolument if a Court took the
broader view?
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