The Democrats are trying to weaponize the Constitution against President Trump through a little-known clause known as the Emoluments Clause.
Nearly 200 Democratic politicians announced on Wednesday that they would be filing a lawsuit against Trump over the clause; on Monday the attorneys general of Washington, D.C. and Maryland announced the same thing. The lawsuits are alleging that Trump is receiving foreign money through the Trump Organization — the attorney generals’ lawsuits specifically cite the Trump hotel as an example — without congressional approval, which they claim is a violation of the Emoluments Clause.
Here is the full text of the Emoluments Clause, which is found in Article I, Section 9, Clause 8 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.
As both The Heritage Foundation and The Washington Post explain, the intent of the Emoluments Clause was to prevent foreign money from corrupting the federal government through the use of bribery. It was common practice for monarchs at the time to provide gifts to foreign dignitaries, such as the King of France giving 408 diamonds and a miniature portrait to Benjamin Franklin. That gift was reported to Congress, but the Emoluments Clause was written to ensure that such a gift would go through Congress to prevent foreign influence of American policy.
Interestingly, the Emoluments Clause has never been litigated, so if the courts determine that these Democratic lawsuits have standing, it would be the first time that judicial precedent would be established on the matter.
It’s hard to predict what the courts will do — and their track record has been less than stellar lately, to put it mildly — but determining if Trump is in violation of the Emoluments Clause depends on the definition of “emoluments.”
Attorney Dan McLaughlin argues in National Review that if the logic of emoluments includes foreign payments to the Trump Organization, Barack Obama would “have violated the Foreign Emoluments Clause every time a foreign public library bought a copy of Dreams of My Father.” He also cites retired University of Montana law professor Robert Natelson, who argued that such an interpretation of the clause “would have eliminated Virginia tobacco planters like Thomas Jefferson or James Madison from ever being considered for the presidency, given the nature of state involvement in the tobacco business at the time.”
McLaughlin points to University of Iowa law professor Andy Grewal saying that emoluments only cover “salary and other financial benefits attached to the holding of an office, and did not cover outside private business interests.” Therefore, the Trump Organization’s activities would not fall under the definition of emoluments.
Attorney Hans Bader also shares this view, as he argues that “sales to foreigners” aren’t covered under the Emoluments Clause:
The framers of the Emoluments Clause were concerned about gifts to officials from foreign powers — such as the money France gave a British king to enter into a treaty ceding territory, and the pension it gave him that enabled him to avoid summoning parliament; and lavish gifts to diplomats by kings. There is little evidence that it was aimed at sales at market prices, even to foreign officials.
Indeed, as Prof. Kontorovich notes, President George Washington even asked a British official to help find renters for his land: “On Dec. 12, 1793, Washington wrote to Arthur Young, an officer of the U.K. Board of Agriculture. … The president asked for Young’s help in renting out his Mount Vernon lands to secure an income for his retirement. Not finding customers in America, he wondered if Young, with his agricultural connections, could find and organize some would-be farmers in his home country and send them over.”
Additionally, Bader links to a post suggesting that the Emoluments Clause doesn’t apply to the president at all:
First, President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission. This suggests that he was not subject to the Foreign Emoluments Clause, which applies to a “Person holding any Office of Profit or Trust under [the United States].” Second, in 1792, Treasury Secretary Alexander Hamilton was instructed to report to the Senate “every” person holding “office … under the United States” and their salaries. His ninety-page list included every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress. This suggests that some definitions of office will turn on whether one is elected rather than which branch one is in.
When taken together, it’s clear that Trump’s businesses receiving foreign money does not constitute a violation of the Emoluments Clause. Whether the activist courts agree is an entirely different matter.