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Trump and the Emoluments Clause

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In another blow to those seeking to reverse the results of the 2016 election by lawsuit and investigation, the challenge to Trump’s right to maintain businesses as president which produce earnings from foreign sources as a violation of the Constitution’s emoluments clause has been tossed out of court by a federal judge. Although U.S. District Judge George Daniels ruled on very narrow grounds that the plaintiffs lacked standing and failed to show that they had incurred harm from Trump’s business arrangements — leaving the larger issue of whether the emoluments clause applies to presidents under the Constitution on the table — this issue is unlikely to go away given the anger of those who reject Trump (and Trump’s own penchant for stoking those flames). In the end the deeper issue hinges on the constitutional wording:

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. — Article I, Section 9, Clause 8

The judge ruled that the text of the Constitution implies that this is a matter for Congress, not the courts and suggested that Congress “is the appropriate body” to take the matter up. But the larger question hinges on whether or not the president holds office “under them” [“the United States” as per the text, see above] or whether he, as a coequal branch of government with Congress and the courts, represents the United States.

If the latter, then the constitutional text cannot apply to him for he is not actually an employee of the United States government but an embodiment of the government. On this reading, the application would be to employees of any of the three branches of government but not to the top officers in the three branches, each of which hold their office from the people (by election or appointment by elected officials in the case of the judiciary) and are not simply government employees. This distinction is important, since being an employee of government means working for one of the three branches under those empowered by the people to head the branches up and thus manage and direct their employees. Arguably, under this reading, presidents are not merely government workers.

Another problem with emoluments is that the term, itself, is defined by Webster’s as:

“the returns arising from office or employment usually in the form of compensation or perquisites”

or, alternatively, according to Oxford as:

“A salary, fee, or profit from employment or office.”

But on these definitions, “emoluments” apply to personal payments received by someone as compensation for some good or service performed and so should be construed as applying to payments made to U.S. officials by foreign entities for services rendered. These kinds of payments are not the same as revenues and profits obtained by a business whose operations involve transactions with individuals who may, incidentally, represent foreign governments in their own day jobs and where such businesses may be a source of income for those serving in the United States government.

While elected American officials of substantial wealth have typically disclosed their holdings and even placed them in blind trusts for operating purposes (without their direction or day to day involvement in business decisions), something Trump declined to do (although it can be argued that he placed his businesses in a kind of trust, in the hands of some of his children and thus removed himself from day to day business decisions). But even that is not constitutionally required. While it is sometimes politically expedient to use a genuinely blind trust (where you not only lack but can have no day to day knowledge of operations of your business interests) doing so was not deemed expedient enough by Trump to follow the practice — nor did the election result suggest he erred in that decision.

Perhaps it pays to look at history to get a better fix on the implications of the emoluments clause, however. George Washington, our first president, was a man of great wealth in his day, owning a prosperous tobacco plantation in Virginia, yet he was not expected, nor required, to separate himself from his businesses on assuming the presidency, even though those in government at the time would have been particularly sensitive to the constitutional text (as it had been freshly minted and hotly debated back then) and the market for tobacco, his primary product, would certainly have included merchants from abroad and there is every reason to assume some foreign officials may have been in businesses that dealt in tobacco, too, and even smoked some of it in their pipes. Would Washington have been construed as taking emoluments from foreign governments simply because he grew and sold tobacco into the markets and prospered from the activity? No one in Washington’s day seems to have expected him to give up his business and its profits just to serve as president for eight years or to have supposed that doing business in an internationally traded commodity amounted to being paid by foreign governments or their agents.

Trump is certainly a special case, of course, given the global  reach and nature of his businesses, and he is clearly no George Washington. But if the Constitution, back when it was first adopted and very much in the minds of those in government, was not taken as demanding that Washington disgorge his plantation during his eight years in office, why presume something different in Trump’s case? If people want Trump out of the White House they’ll just have to vote him out in the next election — unless they can find grounds and enough congressional clout to impeach him (or he finally convinces some of those around him that he lacks the capacity to continue in office and must be removed under Article 25 of the Constitution). Otherwise, the odds have increased substantially, in light of the court’s decision, that Trump’s global business empire does not pose a threat to his presidency.

About Stuart W. Mirsky

Stuart W. Mirsky, a former New York City official who last served as Assistant Commissioner for Operations in the New York City Department of Health and Mental Hygiene before retiring in 2002, wrote a column, "The Rockaway Irregular," for The Wave, a south Queens based weekly, for more than a decade (until Hurricane Sandy changed the equation). He is an original founder of the Rockaway Republicans, one of the most active Republican groups in southern Queens, and author of a number of books, including The King of Vinland's Saga, an historical novel of the Norse in 11th century North America, A Raft on the River, a memoir of Holocaust survival, and Choice and Action, a work of contemporary philosophy addressing the implications of relativism and nihilism for our moral beliefs.

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