Trump and the Emoluments Clause
President Donald Trump almost certainly violated the Foreign Emoluments Clause, Article 1, Section 9, Clause 8 of the Constitution, from the moment he took the Oath of Office. It has already become a rallying cry for those who want to see Trump impeached – their arguments are sound and strong. But many might be asking: What is the Emoluments Clause and how does it apply to Donald Trump? Here’s a quick primer.
What is the Emoluments Clause?
The Emoluments Clause states that “no Person holding any Office of Profit or Trust under them [the United States], 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.” That means no federal officeholder can accept a present, emolument, office, or title from an agent of a foreign government (without Congress’s consent). Most of those are easy to understand: A present is obvious, as is an office or title – a senator, for instance, cannot also be the Interior Minister for France; similarly, s/he cannot be knighted by Queen of England – but an emolument is rather ambiguous.
So what is an emolument?
An emolument, per the Oxford English Dictionary, is “a salary, fee, or profit from employment or office.” Money received from one’s official position or financial stake in a company is thus an emolument. Note that this definition is quite broad – it covers fair market value transactions, not just gifts or bestowments greater than the fair price for a good or service. Any profit from a position is an emolument.
How does this apply to Donald Trump?
Donald Trump’s sprawling, global businesses frequently interact with agents of foreign governments. Industrial and Commercial Bank of China, a massive financial entity largely controlled by the Chinese government, rents space in Trump Tower New York. The Trump Organization also leases space to Abu Dhabi’s government tourism agency. Trump’s most recent project, Trump Hotel DC, has already drawn international visitors as diplomats and other foreign agents book rooms at the president’s hotel in hopes of currying his favor. All of these examples violate the Emoluments Clause. Corporations owned by foreign governments fall under the Emoluments Clause, as do foreign government agencies and diplomats spending foreign government money. Even if they do not pay above the fair market rate for their leases or rooms, the definition of “emolument” covers the transaction and, as the money originates from a foreign government and Trump, as a financial stakeholder in the Trump Organization, ultimately receives part of it. That stands in direct contradiction to the letter and spirit of the Emoluments Clause.
Wait, I thought Trump resolved his conflicts of interest before taking office?
No. He announced his resignation from the boards of many of the Trump Organization’s companies. That, however, does nothing to alleviate Emoluments Clause concerns. So long as he continues to have a financial stake in the businesses – and he still does – and thus can benefit from foreign deals, he will violate the Constitution. Furthermore, while Trump said he would donate any profits (how will define “profit”?) from his DC hotel to the US Treasury, that mitigates no Emoluments Clause concerns because he will still receive money that originated from foreign governments. The Clause offers no exception for charitable emolument uses.
Does the Emoluments Clause even pertain to the President?
Almost certainly. In Article 2, which pertains to the executive branch, the presidency is referred to as an office (which aligns with Emoluments Clause wording of “office…under [the United States].”
Okay, but does the Emoluments Clause actually matter?
Yes, very much so. The Emoluments Clause arose from fear of corruption or manipulation of US politics by foreign actors. Payments of any form endow one to the giver. Consider, too, Donald Trump’s swooning over any who complement him – now add money to the mix and imagine his reaction. In a Republic of any age, the potentially deleterious influence of foreign actors (or situations in which a president might be motivated to place himself above the country) must be avoided by following the guidelines the Founders laid.
And to those Founders, foreign emoluments presented a major concern. In 1810, just a couple decades after the Constitution’s signing, Congress approved an amendment to the Constitution that would have stripped the citizenship from anyone who received, without Congress’s consent, a foreign emolument. The amendment fell one state short of ratification, largely because some found it redundant due to the Constitution’s existing Emoluments Clause. Clearly, the Founders did not take such issues lightly. We shouldn’t, either.
So what recourse do we have?
As citizens, very little. We don’t have standing to sue Trump for the Emoluments Clause violation. DC hotels that compete with Trump’s might have standing, but it would be tenuous at best. Congress could pass a waiver, though doing so would be quite dangerous: We should not allow the president to receive emoluments that could cause him to ignore the country’s best interests. Trump could fully divest from his business or place it in a truly blind trust, but he has shown no interest in doing either.
Therefore, the best recourse is to urge impeachment. Trump continues to violate an integral part of the Constitution and his doing so risks innumerable conflicts of interest that, at worst, would pit the interests of the Head of State and Government against those of the nation he leads. Voters, and Congress, should take this infringement seriously and act accordingly to remedy this flagrant constitutional wrong.