Friday, February 17, 2017

A Primer on Emoluments And Its Possible Application to President Trump

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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