An old-fashioned word spoken by America’s Founding Fathers is suddenly back en vogue: Emoluments.
The reason? President Donald Trump’s vast business empire — and his refusal to place that empire in a blind trust.
The Emoluments Clause is a provision in the Constitution that prohibits federal officials from receiving money or gifts from foreign governments without congressional approval. As Harvard Law School professor Laurence Tribe recently wrote in a legal brief, Trump “appears to be on a direct collision course with the Emoluments Clause.”
That collision began last Monday with a new lawsuit filed in New York — backed by a team of constitutional law and ethics lawyers, including Tribe — claiming that Trump is now violating the Constitution via the Emoluments Clause.
While Trump has asserted his business interests do not run afoul of the clause, an ideologically broad group of ethics experts argue otherwise.
Here’s the history behind the Emoluments Clause and how it could cause serious problems for our new president.
What, exactly, is the Emoluments Clause?
The literal definition of an emolument is “a salary, fee, or profit from employment or office.” When the Constitution was drafted, the term broadly meant exactly that: Any sort of payment or payment in-kind, including gifts.
The clause is a provision in Article I, Section 9. In full, it states:
“…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.”
So unless the House of Representatives votes to approve said gifts or payments, they would be deemed unconstitutional.
There is also the even lesser-known Domestic Emoluments Clause in Article II , which prevents federal officials from accepting any profits from the United States government. As Tribe told Boston.com, the Domestic Emoluments Clause is absolute.
“Congress cannot give consent to a president’s violation of the Domestic Emoluments Clause,” he said.
How important is this clause?
“The Founders viewed it as absolutely central to our nation’s sovereignty and survival,” said Tribe, a leading constitutional law scholar.
At the time, early American officials were seriously concerned that foreign meddling (i.e. bribery) could “doom the young nation,” Tribe wrote in a recent legal brief with ethics experts Norm Eisen and Richard Painter, who served in the Obama and Bush administrations, respectively.
The Emolument Clause was originally adopted from a Dutch rule prohibiting foreign ministers from accepting gifts from other countries, they wrote, and a version of the clause was included in the Articles of Confederation.
The push to add it to the Constitution as an “anti-corruption” measure became particularly pressing after an infamous case, in which the King of France gifted Benjamin Franklin a diamond-encrusted snuff box. Worries that Franklin could become corrupted by French interests — amid larger concerns that foreign bribery could undermine the infant country — prompted the addition of the Emoluments Clause to the Constitution (Franklin ultimately had his diamond-studded emolument approved by Congress).
Tribe, Eisen, and Painter noted that the Emoluments Clause was viewed so important for the country that the Constitution was nearly amended in the early 1800s to add a severe punishment for anyone who dared to violate it:
Indeed, the Clause was seen as so important that the Eleventh Congress considered, as a proposed Thirteenth Amendment, a provision stating that a person would lose his or her citizenship by accepting an office or emolument from a foreign power. The proposed amendment was, in a modified form, accepted by both Houses, and subsequently obtained the approval of all but one of the requisite number of States.
The proposed amendment ultimately failed, they wrote, because officials at the time decided such an extreme punishment was “unnecessary, given existing protections.”
Does the Emoluments Clause apply to the president?
While Trump has rightly pointed out that the president is exempt from certain conflict-of-interest rules that apply to Congress and other government officials, he is not exempt from the Emoluments Clause, according to a bipartisan group of ethics experts.
While there is some dissent, which Tribe has characterized as “extreme,” Tribe, Eisen, and Painter say the clause “unquestionably” applies to the president. As Tribe pointed out in a recent piece for The Atlantic with Eisen, Painter and lawyer Joshua Matz, even Trump’s lawyers agree that the Emoluments Clause applies to the president. From left to right, there is a wide spectrum of legal opinions agreeing on this point.
Why is the clause a problem for Trump?
Trump is the wealthiest president in U.S. history thanks to his ownership of the Trump Organization, his family’s massive, international real-estate conglomerate. As NPR has detailed at length here, Trump’s umbrella company contains hundreds of international hotels, golf courses, commercial real estate, and other miscellaneous companies.
Though Trump recently said he will hand over management of his company to his sons, he has presented no plans to divest himself from his business, which actively operates and brings in revenue in foreign countries.
This has ethics experts roiling over potential conflicts of interest. And Tribe, as well as many other experts, says Trump is now violating the Constitution via the Emoluments Clause.
“He will violate it from the moment after he takes the oath—every time a foreign government, agent, or entity controlled by such government pays one of Trump’s companies to use its facilities,” Tribe told Boston.com earlier this month, particularly noting the president’s sprawling hotel empire.
Have any other presidents violated this provision?
“No substantial violation by any previous president has occurred,” Tribe told Boston.com, adding that it “would be an impeachable offense akin to bribery and treason.”
What penalties could Trump face?
If the House does not consent to Trump’s foreign emoluments, he could be vulnerable to impeachment and, subsequently, trial and removal by the Senate.
But would Congress actually impeach him?
“Without the Consent of Congress” is the key phrase to note in the Foreign Emoluments Clause, because it indeed means that the Republican-controlled House can vote to consent to, or approve, Trump’s emoluments. If they do approve, Trump is in the clear — just like Franklin was more than 200 years earlier.
But if they don’t, as Tribe said, the president is vulnerable to impeachment.
While some groups have rallied around the idea of impeaching Trump, politically astute observers have noted that “it’s highly unlikely” that House Speaker Paul Ryan would lead an impeachment effort against a fellow Republican, and perhaps even more unlikely that Democrats will gain control of the House before 2020.
There is also the aforementioned Domestic Emoluments Clause, which is absolute and not subject to approval by Congress. Other constitutional law experts have argued that tax breaks or incentives received by Trump’s real estate empire or reality TV show may violate this separate part of the Constitution.
But aside from congressional action, Tribe says a violation of either Emoluments Clause would expose Trump “to a multitude of civil suits by entities injured, competitively or otherwise.”
Are there specific examples of Trump violating the Emoluments Clause?
Two of the tenants in Trump Tower in New York City, for example, are the Industrial and Commercial Bank of China and a UAE tourism agency.
According to last week’s lawsuit, Trump’s acceptance of those entities’ lease payments “without congressional consent constitutes a violation of the Foreign Emoluments Clause.”
In another example, Trump is the part owner of a Manhattan building underwritten by a $950 million loan from the state-owned Bank of China. Thus, ethics experts say any benefits Trump’s company receives from the Bank of China is unconstitutional, without consent from Congress.
Financial disclosure forms also show that Trump has eight separate registered companies that appear to be involved in hotel deals in Saudi Arabia, including Jiddah, the oil-rich kingdom’s second biggest city. The potential conflict is something Trump actually admitted on the campaign trail in 2015, per the Washington Post:
On Aug. 21, the same day Trump created four of the Jiddah companies, he told a rally crowd in Alabama: “Saudi Arabia, I get along with all of them. They buy apartments from me. They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much.”
Last week’s lawsuit also cited reports that foreign diplomats “have been flocking” to Trump’s new hotel in Washington, D.C.’s Old Post Office building since the president won the election in 2016.
In each of these cases, the Trump Organization, which Trump continues to hold a stake in, is accepting payments from foreign government entities. Ethics experts like Tribe, Eisen, and Painter say this is a clear violation of the Emoluments Clause.
How can Trump resolve these conflicts?
In a press conference earlier this month, Trump’s lawyer, Sheri Dillon, said he would “voluntarily donate all profits from foreign government payments made to his hotel to the United States Treasury.” But ethics experts say that doesn’t go nearly far enough.
According to Tribe, donating hotel profits to the U.S. Treasury does not address how Trump may profit from how foreign governments indirectly interact with his company, beyond simple hotel room purchases.
“So long as Trump is both president and privately financially interested, these and other Trump Organization affairs could be magnets for special treatment in commerce, taxation, regulation, and investigation—benefits from foreign powers that qualify as gifts or emoluments,” Tribe, Eisen, Painter, and Matz wrote in The Atlantic.
He also said it was unclear how “profits” would be defined or calculated. Amid the lack of transparency from the Trump Organization, Tribe said it would be impossible to verify.
Watchdogs have called for Trump to completely divest himself from his business in order to avoid running afoul of the Emoluments Clause, as well as other conflicts of interest. That said, the process of selling such a large real estate empire would be long and complicated.
What’s the counter-argument from Trump’s team, and does it have any merit?
During the aforementioned press conference earlier this month, Trump’s lawyer, Dillon, argued the Emoluments Clause does not apply to fair, market-value exchanges.
“No one would have thought when the Constitution was written that paying your hotel bill was an emolument,” Dillon said. “Instead, it would have been thought of as a value-for-value exchange; not a gift, not a title, and not an emolument.”
Tribe and other constitutional and ethics experts dismissed this argument.
“Imagine if the president owned a company that made billions of dollars annually, all as a result of profitable, fair-market-value transactions with Russia and China,” they wrote in The Atlantic. “Is it really conceivable that such an arrangement would be constitutional, given the basic purpose of the foreign emoluments clause?”
As the conservative Supreme Court Justice Samuel Alito once argued, any potential violation of the Emoluments Clause would be considered on the basis of whether the transaction raises concerns about corruption or foreign influence. Ethics experts certainly think Trump’s foreign entanglements present this issue, fair-market exchange or not.
So what now?
There are more than a few skeptics as to whether this week’s lawsuit, filed by the group Citizens for Responsibility and Ethics in Washington, will serve its intended purpose. The particular issue in this case appears to be whether the group actually has standing.
“Just complaining about bad government does not give rise to standing—or you or I would have standing to challenge just about anything that goes on,” Case Western Reserve University law professor Erik Jensen told the Washington Post.
Eisen, who is part of the group’s legal team, told The New York Times that their lawsuit is not seeking monetary damages, but hopes at the very least to get Trump to turn over his tax returns. That, they say, would fully reveal what money he has received from foreign government entities.
Tribe told Boston.com that other groups could potentially sue Trump if they thought his position was improperly putting them at a competitive disadvantage. For example, a competing hotel could sue if foreign diplomats showed a tendency to stay at Trump hotels.
“Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’” one unnamed Asian diplomat told the Post shortly after last year’s election. “Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’”
Of a lawsuit along these grounds, at least one Washington, D.C. hotel told the Post earlier this month: “We’ve been taking a look at it.”