29 June 2017

The Emoluments Clause Does Not Apply to the President: Frivolous Democratic Suits

Stephen Kershnar
The Left Sues Trump Over the Emoluments Clause
Dunkirk-Fredonia Observer
June 18, 2017

Various leftist groups and politicians have recently sued Donald Trump over the Emoluments Clause of the Constitution. An emolument can take the form of a gift or compensation. The Article I Section 9 Emoluments Clause prohibits the receipt of an emolument. It states, “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 Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.”  The issue is whether the Clause applies to the President.

There is no judicial precedent interpreting the clause. Nor has the Supreme Court addressed it. The clause differs from the ban on bribery because the Emolument Clause only concerns gifts from foreign governments rather than from public or private parties in general. The Emoluments Clause also differs from the legal ban on conflicts of interest because that ban explicitly exempts the President.
The three lawsuits were brought by a left-wing activist group, two Democratic attorneys general from the District of Columbia and Maryland, and nearly 200 Democratic members of Congress. The members of Congress asked the court to declare that Trump would violate the Constitution were he to accept a benefit banned by the clause. They also asked that the court order Trump not to take any gifts or compensation from a foreign government without Congress’ approval.

            Sadly for the Democrats, the Emoluments Clause does not apply to the President. Law professor Seth Tillman provides three arguments for this assumption. First, he argues that “office” in the Emoluments Clause does not include the President. Rather, he notes, it refers to commissioned rather than elected officials. When a provision applies to elected officials, he points out, it explicitly names them. Consider, for example, the Impeachment Clause.

            Second, Tillman argues that in understanding the Constitution special consideration is due to the precedent set by George Washington’s administration, especially with regard to presidential powers. Washington accepted gifts from the French government without any Congressional consent or even a record of congressmen criticizing his doing so. If the generation that wrote and ratified the Constitution didn’t think the Emolument Clause applied to the President, it probably doesn’t apply to him.

            Third, during the Washington administration, Tillman points out, the Senate ordered the Secretary of the Treasury, Alexander Hamilton, to list people who held office under the United States and their salaries. Hamilton’s list did not include elected officials, such as the President.

University of Chicago law professor Will Baude argues that Tillman’s interpretation of “office” also makes sense of the Constitution’s structure and text. Under Article II, Baude argues, the President is required to “Commission all Officers of the United States.” This would make little sense if he were an officer. Baude also argues that there are two other emolument clauses in the Constitution that limit salary increases for the President and members of Congress. Both clauses mention these positions by name rather than including them via the words “office” or “officer.”

Even if the Emolument Clause were to apply to the President, it does not provide a remedy. The Clause does not make accepting an emolument a crime. Even if it made it a crime, the President is probably not subject to the federal criminal law because he is the boss of the Justice Department and Attorney General. It is unclear whether they could charge him without his permission. It is unlikely that he would give permission. Even if he were to give permission for them to charge him and, as a result, he were convicted of a crime, he could still pardon himself. Even if he permitted prosecutors to convict him and did not pardon himself, it is unclear whether he would be imprisoned given that he is the boss of the federal prison system. The Justice Department agrees with this. It claims that a sitting President cannot be indicted for a crime.

            The President is also not subject to Emoluments Clause because no one has standing to sue under it. To have standing, you have to have a concrete and particular injury. It is doubtful that a private citizen could meet this condition.

If the Emolument Clause had a remedy, it would be the President not being reelected or being impeached and convicted. Impeachment, though, requires serious corruption or abuse of power, criminal activity, or violating federal law in such a way as to trespass onto Congressional power. Atrocious behavior can meet these conditions regardless of whether it violates the Emolument Clause. Consider, for example, President Bill Clinton’s perjury and obstruction of justice.  

            The Emoluments Clause is also painfully vague. On a common interpretation, an emolument for a businessperson can take the form of payment for more than fair market value. There is an issue as to whether this would be met when a foreign government gives a gift or compensation to a President’s corporation, foundation, or adult children. Similarly, there is an issue as to whether the condition is met were the gift or compensation given by a private corporation partly owned by a foreign government or private citizen with close ties to a government. These are the conditions under which the clause would need to be applied.

In short, the Emoluments Clause does not apply to the President and would be irrelevant if it did. President Trump’s far-reaching businesses and his refusal to put them in a blind trust thus do not violate either Emoluments Clause or law banning conflicts of interest.

The Democratic lawsuits are thus frivolous and should be thrown out. Still, there is something funny about watching Democratic members of Congress get upset over the Emolument Clause when they couldn’t care less about the Constitution and were silent over Obama administration’s rampant lawbreaking (for example, the IRS’s abusing taxpayer groups, blatantly unconstitutional amnesties for illegal aliens, and war on Libya). 

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