The Constitution’s Emoluments Clause – The Case Against Trump?

Night time photo of the Supreme Court building from the outside front looking up the steps leading to the entrance

by Paul Hamlin


Emoluments, seems like a strange word in modern conversation and it is a confusing word when applied to modern politics.  This idea has come back to the forefront of the national political conversation, and as always there are several interpretations and several different solutions based primarily on what side of the political isle you find yourself on.

If we try to take off our partisan hats and look at all sides of the emoluments clause and the constitution, what does that look like?

Benjamin Franklin’s Snuffbox

Benjamin Franklin
Benjamin Franklin was implicated in an emoluments scandal.

European practices during the time prior to and during the American colonies was to offer titles of nobility, emoluments and gifts to other government officials, particularly ambassadors, in order to receive preferential treatment or favor.  This corrupt system was prevalent and was widely accepted practice.

The European political system was rife with bribery and attempts to purchase power and influence was considered completely normal.  European nation would often use gifts to influence and infiltrate foreign governments.

In 1651, the Dutch were the first European power to attempt to stem this type of behavior with a rule prohibiting their foreign ministers from accepting presents in any manner or way as noted by Zephyr Teachout in Corruption in America

This attempt set the groundwork for future attempts by the United States to break away from the politics of corruption of Europe.

This concept of bribery was so pronounced that King Louis XVI actually presented Benjamin Franklin (and others) with a grandiose snuffbox encrusted with diamonds.  Franklin, under scrutiny from the population for appearances of corruption, went to the Congress and sought and received permission to keep the expensive gift.

It is with this political environment in mind that one must read and understand the founding documents of the United States.  As the colonies broke away from the European way of ruling, the founders had deep seeded fears of foreign interference in the American political system.

Language was written into the Articles of Confederation to prohibit elected officials from accepting titles of nobility, gifts or bribes from foreign entities or emissaries. Article 6:1 of the Articles States: “Nor shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State.”

During the writing of the Constitution the practice was nearly excluded, because it was assumed as an obvious expectation of government officials. Charles Pinckney, however, requested that it be added and with no dissent it was.  Hence, the birth of the emoluments clause of the Constitution.

“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.”

The Emoluments Clause was seen as so important to the leaders of the nation that the 11th Congress attempted and nearly succeeded in passing the 13th Amendment, which would have added power to the emoluments clause and strip citizenship from Americans guilty of being in breach of the emoluments clause.  The proposal passed both houses of Congress and only failed to be approved and implemented because it fell one state short of ratification.

Definition and Explanations

Emoluments: profit or gain arising from station, office, or employment: reward, remuneration, salary.

There are conflicting understandings or definitions of what emoluments are and how they apply to leaders in the government. This is made worse by the fact that the Supreme Court has never accepted any litigation in the cases of the Emoluments clause, they have made some limited definitions, but never ruled on a case of emoluments.

In some arguments the emoluments clause only applies to ambassadors, emissaries and appointed positions within the government. This would preclude the President from any kind of conflict against the emoluments clause.

The historical context would be that George Washington and many of the original presidents owned farms or plantations, and that those plantations often were engaged in business with foreign dignitaries (sale of tobacco).  George Washington also never sought or obtained any consent from Congress for gifts received from foreigners.  When Congress approached Secretary of State Alexander Hamilton to produce a list of government officials, the list he produced did NOT include any elected officials.

On the other side of the argument is the belief that all leaders, elected or appointed, are responsible to comply with the emoluments clause.  In order to understand this argument, you have to understand how opposed to emoluments the founders were, and the extreme caution toward the corruption of the European political system. 

To the point that emoluments are a part of both the Articles of Confederation and the Constitution, that fact would indicate that all are responsible for protecting the nation from foreign interference.

Edmund Randolph used emoluments as an argument for impeachment

To make that point, Edmund Jennings Randolph sold the Constitution by stating that a breach of the emoluments clause by the President would be grounds for impeachment at the Virginia Ratifying Convention.  While George Washington did not seek or obtain consent from congress for foreign gifts, Andrew Jackson set the precedent when he did seek congressional consent.

There are other instances in the legal system where the President is included in the “rule of law” and accountability as an officer of the United States.

Article II, Section 1 says the President receives a salary while in the office but “shall not receive within that period any other emoluments from the United States, or any of them.”

The Foreign Gifts and Decorations Act of 1966 is clear that the law applies to all officers of the United States government, appointed or elected.

In 1850 the Supreme Court (Hoyt v United States) declared emoluments included “early species of compensation or pecuniary profit derived from a discharge of the duties of the office”.  While not definitive, this explanation indicates that secondary profit from business dealings would NOT be considered an emolument.  If the power of the office was used with a foreign entity to procure profit (that would not have occurred without the influence of the office) the officer would be in contradiction with Article 1, Section 9 of the Constitution.

In 1920 the Supreme Court (Evans v Gore) stated that “sum collected by a clerk for a service not pertaining to his office…was not a fee or emolument.”  In both Supreme Court inferences a public official still has rights to maintain business outside their role in the government, and they have a right to make a fair profit from all customers.

These two definitions from the United States Supreme Court would indicate that public officials have every right to earn fair compensation for services rendered as long has there are no expectations for favors or unfair gain.  This argument is the “fair market value” argument.  Emoluments would come into effect if preference is granted or expected from or to a foreign power based on the elected or appointed position.

The Supreme Court has never heard a case about emoluments

In this example the argument would be that President Trump has every right to make a profit from his business, even with foreign entities and government.  He has no additional requirements to refuse payment from foreign entities, he only needs to ensure that the profit received are equal to the market value, no more and no less.

The moment that a foreign power provides revenue of a higher amount for the same service in hopes of favor or political favors would become an issue with the emoluments clause.  This argument relies on the idea that previous Presidents, especially founding Presidents, did not have to sell or divest their holdings in plantations that sold to foreign governments. 

As long as the practice of selling to foreign governments was fair there is no fault.  However, if as an example, a foreign government had offered land or above market price for the product to Washington in exchange for special considerations it becomes the issue.

Under this argument there are things that should be watched for:

  1. Increased profit from foreign governments or officials
  2. Substantially increased business holdings of the US official in foreign lands
  3. Inequitable business pricing, reduced rates or increased rates for foreign powers
  4. Inability to provide full disclosure of business dealings with foreign powers
  5. Significant changes in public policies in favor of foreign nations that the US official has business dealings in or with
  6. INTENT…there needs to be intent for corruption to occur (this is always the sticking point for proving crimes of this caliber)

Now we can see the major issues and confusion that exists when discussing the emoluments clause.  That confusion does not end here though.

When President Trump took his office, he chose to place his business findings in trust.  This trust allowed his family to remain in control of the business, allowed for a 3rd party ethics officer to oversee and his existing CFO to remain in control of finances.  His arrangement also allowed for him to continue to receive profit from his business dealings during his tenure as the President. He would receive quarterly checks from the business without any oversight.

The arrangement also stated, in an effort to stem concern about the emoluments clause, that any profit received by foreign governments would be donated to the treasury. When this was done there was no instrument put into place to accurately track every transaction, and there is no accounting for transactions, so the donations back to the treasury department are estimates based on historical trends.  There has been no auditing of these donations to ensure that they are accurate.

When President Trump was elected in 2016, there were multiple lawsuits presented in federal courts claiming that the President was in violation of the Constitution.  In December of 2017 a judge in Manhattan dismissed the claim against Trump for a lack of standing, declaring that the plaintiff failed to show unjust enrichments of the president in exchange for political favor.  Here is the difficult part, the court was also clear that this lawsuit even if seen through to the end would have no teeth.  The court stated that it is not the role of the court to rule on the emoluments clause, it is the role of Congress.

That is not the end, in March of 2018, a Federal judge in Maryland allowed a lawsuit to continue, despite the argument from Trump’s legal team to acknowledge the Manhattan precedent.  The court stated that there was enough evidence to hear and pursue a case against the President of the United States on grounds of the emoluments clause.  The confusion continues as the court has now rules in contradiction of one another, simply adding to the ambiguous nature of the emoluments clause.

NONE OF IT MATTERS

Now the hard part, even if the Maryland court succeeds in trying and convicting the President of breaking the emoluments clause of the Constitution, what can be done?  The difficulty that does exist is the idea that even if the President is in violation of the Constitution, (historically look at Lincoln’s suspension of habeas corpus), there is little or nothing that the courts can do.

The Congress, not the courts, have authority to demand, request or enforce the emoluments clause. Suits brought against the President in regard to emoluments will continue to simply be pushed back to Congress for actions.  Congress can simply, under its authority in the Constitution, consent to the emolument or it can pursue it in the form of investigation and impeachment proceedings.

Congress can ask for accounting from any elected official to ensure the integrity of Article 1 of the Constitution.  Congress also has the power to subpoena and can demand supporting records (financial and legal) to verify any testimony for or against the office holder.

The bottom line is that the process of enforcing ANY interpretation of the Emoluments Clause is dependent on the ability of Congress to apply action to the Constitution.  It is imperative that the Constitution be applied equally and blindly, no matter who or what party is impacted, and that is the oath that every person in Congress takes.

Can our current Congress, or any party driven Congress, lay aside political grandstanding and political interests to apply the Constitution fairly?  Can the Republican or the Democrats look at this issue strictly from a Constitutional perspective, without jading their vision with party politics?

When you blindly pursue demagoguery, you do yourself no favors, and you actually could damage your argument and your position.  The Constitution is not and should not be used as a pawn in the modern political theater and party corruption.

IT’S TOO LATE

The past precedent to prevent appearances of conflict of interest in the presidency was either a complete divestiture from owned businesses or to place businesses in a blind trust.

When Jimmy Carter became President, he owned and operated his family peanut farm in Georgia.  When he was elected to the presidency he placed the farm in blind trust.  What is the difference?  With Carter, he removed all family decision making in the business (though his brother kept a position with the business), he placed a third independent party in control of all business decisions.  Business decisions could not be influenced by the President, as he removed his authority to do so.  He also placed any and all profit from ownership aside, so that he could not benefit while president.

This was the standard precedent for Presidents with business interests or ownership.  When President Trump took office, he could have followed precedent, but his legal counsel, his family and he did not feel that this was legally necessary.  He felt that he was within his legal rights to maintain his business.  Maybe he was, maybe he isn’t, that has never been ruled on by the court, or reviewed by Congress.

With ethical leadership President Trump could have avoided the emoluments arguments

He could have saved the appearance of wrongdoing or corruption by following the precedent. Ethical and legal are often two different things.  Legality does not always equate to ethical.  The whole issue should have been resolved with a “leader” putting self aside for the betterment of the nation.  Ethical and selfless leadership would have and should have dictated that this never be permitted to get to this point.  The President of the United States should have taken steps to protect the nation from any appearances of corruption…but that ship has sailed.

THE BOTTOM LINE

If you are looking for a simple solution in the Emoluments Clause, it certainly is not simple and it may not be a solution.   


(Paul Hamlin is running for US House of Representatives as an independent candidate in New Jersey’s 1st Congressional District.  You can find out more about him and his candidacy at paulhamlin.com)

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One Thought to “The Constitution’s Emoluments Clause – The Case Against Trump?”

  1. Pam Kane

    Good read. Well researched, explained and written.

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