Is it OK for a business executive who wins the presidency to continue to run his business? Legal scholars and critics of President Donald Trump argue that it’s a violation of the Constitution’s Foreign Emoluments Clause. But it’s not that simple.
Another lawsuit has been filed, this time by the State of Maryland and the District of Columbia, against the President for his violation of the clause.
There are a number of preliminary issues the court needs to resolve to even determine if it can hear this case. The plaintiffs might lack the necessary standing to even bring the case to court, that is, that they have (1) suffered an injury (2) that is fairly traceable to what the defendant did and (3) can be remedied by a court.
This case may also present a “nonjusticiable political question” that should be left alone by the courts, and is for resolution by another branch of government.
But assuming for the moment that a court eventually reaches the issue of whether President Trump has violated the Emoluments Clause, the plaintiffs will have their work cut out for them. This is a part of the Constitution that really hasn’t been litigated before, at least to this extent.
The Emoluments Clauses are two distinct provisions in the Constitution designed to guard against corruption of the chief executive.
The Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” absent “the Consent of the Congress.” U.S. Const. art. I, § 9, cl. B, The Domestic Emoluments Clause, entitles the president to receive a salary while in office and forbids him from “receiv[ing] within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, § l, cl. 7.
The text itself appears to back up the plaintiffs’ position. No emoluments, period. The language does not make an exception for profits unrelated to office.
But if you look at the history of the words, and their likely meaning at the time, it appears that the emoluments restriction was limited to gains arising from one’s station or employment within the government, not one’s outside investments or businesses.
It’s not just reasonable minds that differ on the issue. Brilliant academic scholars bitterly disagree about it, too. Those who believe Trump has violated the Foreign Emoluments Clause, for example, take the position that any benefit, or any payment at all from a foreign government, is an automatic violation. To them, if a single Saudi prince bought a Trump steak with royal money on the first day of the presidency, then the Foreign Emoluments Clause was violated and continues to be violated daily with every steak, hotel room or golf club membership purchased by a foreign government which is inuring to the benefit to the President.
This is an overly restrictive reading of the Emoluments Clauses and the words contained therein. It’s a modern interpretation that is at odds with the history and meaning of the terms as they were understood at the time of the Constitutional convention. The word “emoluments” is limited to benefits derived from one’s office.
Says who? Says the Supreme Court, for one.
In one 1850 case, the court defined emoluments as relatively “comprehensive,” but still only “embracing every species of compensation or pecuniary profit derived from a discharge of the duties of the office. …” Accordingly, there’s support for the proposition that the payment must be for official services. A payment from a Saudi prince directly to Trump for a pardon of a Saudi national prosecuted by federal authorities would be a purchase of the President’s official services, and surely a violation of the Foreign Emoluments Clause. The President’s many businesses do not (at least not officially) offer presidential influence for sale. Steaks are not the same as pardons, or trade deals, or plum government contracts.
And even for those who advocate that any benefit violates the clause, a strict reading would actually defeat the plaintiffs’ case.
The “any benefit” folks are right that the text of the Constitution contains no explanation or limitation of the word “emolument” or the other kinds of benefits that violate the clause. But strict reading of the text also forecloses any violation of the clause because of another word: “Person.”
The Foreign Emoluments Clause says that “no person holding any office of profit or trust” shall accept. … There is no mention of “business entity” or “corporation” or “limited liability limited partnership.” When expounding the Constitution, every word must be given its appropriate meaning; the presumption is that no word was unnecessarily used, or needlessly added. You may say: “Yeah, but come on. The framers didn’t anticipate or deal with multinational companies.” Sure they did. Long before there was Big Pharma, there was Big Indigo and Big Tea in the form of the British East India Company. The Amazon.com of the 17th century was created by a royal charter, but Americans took the corporate concept and adapted it to private enterprise. For example, when an employee at Amazon receives his paycheck as payment, he doesn’t receive money directly from us, the customers — although we may all be happy to turn over half of our paycheck to the corporate giant for Amazon Prime and same-day delivery service. Still, no one would argue that customers are directly paying the guy working the conveyor belt at a shipping facility. He’s paid by the company.
Similarly, a payment to Trump’s company is probably not a violation. But even assuming for argument’s sake that foreign governments paying Trump’s companies is the same as paying him, these payments are not for presidential services. They are for non-presidential steaks, or “yuge” hotel rooms, or other products and services.
The Maryland/DC lawsuit could go either way, but it should be dismissed. As a public policy, it would foreclose any successful businessman who wants to continue to own his enterprise in the future from running for president. To some, that may not be a bad result, but the problem is that it wouldn’t be a constitutional outcome.