The Emoluments Clause: The Continuing Controversy

Is President Trump violating the Emoluments Clause?


    The Title of Nobility Clause, or the Emoluments Clause, prohibits the federal government from granting titles of nobility. It also restricts members of the government from receiving gifts, emoluments (salaries, fees, or profits), offices or titles from foreign states and monarchies without the consent of the Congress (check out Article I, section 9, clause 8 of the Constitution). So what does that mean exactly? This clause basically inhibits members of the government from accepting bribes from foreign states and persons without the approval of Congress — it is a protection against corruption.

    President Trump, since the beginning of his term in 2016, has been investigated based on his decision to maintain his global business, the Trump Organization. An article from The Washington Post explains how The Trump International Hotel in Manhattan received “a noticeable revenue boost” from a stay from a Saudi Arabian prince, and the D.C. location often provides for foreign governments and their diplomats.   

    Problems with the interpretation of this clause didn’t begin with our current presidency. Controversy surrounding the original framers’ intention stems all the way back to Washington. In an article by Richard Tofel, an opinion writer from ProPublica, he describes a legacy of past presidents who “sought for congressional approval” for the acceptance of gifts under the Emoluments Clause. These cases raised questions on the boundaries of the clause: if there could be an established minimum value where the restrictions would apply, whether there is a disparity between personal and official gifts, and significantly whether those gifts benefit the federal government rather than the executive power. There is even an argument on who the framers intended the clause for. Some have argued that the clause wasn’t originally intended for the President at all based on a letter to the Senate from Alexander Hamilton in 1792. This letter consisted of a list of “all under the office or employment of the United States” in which conveniently omitted the president.

    Trump’s argument, backed by the U.S. Justice Department, hinges on this information and states how if the clause is to be strictly interpreted, presidents from the beginning of the republic would be in violation of the clause. He also promised that he would donate the profit from foreign delegates to the U.S. Treasury if the Congress accepted his emoluments. His lawyers argue that “fair-market transactions, like when a foreign delegation pays the market rate to stay at a Trump hotel, are permitted.” His opposers have questioned this statement referring not only to the millions of dollars he has received from these fair-market transactions, but the relationships they have resulted in. They argue that these relationships could lead to special treatment in regards to taxation, commerce, and regulation.

    So is the President currently at fault? Unfortunately for him, there is plenty of information supporting his violation. Not only does he receive revenue from the Trump Hotel, the building is also leased to his corporation by the government. This fact brings in another constitutional clause stating how the president will receive compensation while in office, but “shall not receive within that Period any other Emolument from the United States, or any of them.” (Article II, section 1, clause 8) Meaning he not only receives emoluments from foreign officials, but also from another portion of the U.S. government.

    To further stack the cards, it is important to acknowledge how the majority of past presidents, in order to avoid inquiry over their emoluments, would use blind trusts. In other words, they would leave their finances with an independent trustee, who would manage their funds without contact with the president. In contrast to his predecessors, President Trump’s is left in the hands of his sons Donald Trump Jr. and Eric Trump in whom allow him access to the funds as well as communication regarding its usage and allocation. Trump also refuses to release his tax returns to prove how much money he actually receives from foreign diplomats.

    So is Trump in violation of the clause? It will be interesting to see how the investigation will conclude. The congress could either accept his emoluments, voiding any consequences, or he could be convicted for violating the constitution–perfect fuel for those dreaming of his impeachment.

One thought

  1. When it comes to the Emoluments Clause and if it applies to the President, pundits usually come down on both sides of the issue when citing gifts to President Washington or the letter to Congress from Hamilton (they seem to perceive to know what they were thinking) when in fact they should be examining how Congress considered the matter. Congress took no action on Washington’s receipt of gifts but they did accept Hamilton’s list of government officials that fell under the provisions of the clause, which excluded the President. If the Clause did apply to business interests as some argue in regards to President Trump, then we would have a very, very long list of Presidential violators starting with President Washington and proceeding through most of the 20th century. None of the early Presidents ( none of the latter either) divested or gave up control of their business interests, which involved trade with foreign governments and this includes Washington, Adams, Jefferson, and Monroe to just name a few. All of these men had vast land holdings or farms and much of their business income was derived through trade deals and compacts with foreign governments; predominately England. No one in Congress at the time would have even considered requiring a President to forgo or give up their major source of income (in fact the only source of hard currency at the time) simply because they were elected to serve as President. But moving forward a lot of people want to apply such a definition of the clause to President Trump and it seems they only want to because it is President Trump. President Obama has written numerous books; several while President, best sellers worldwide. Did the profits from those books published and republished while he was President fall under the Emoluments Clause? If we truly expect future candidates for President to disassociate themselves from or give up a business interest we must be prepared for the fact that a lot of highly qualified people simply will not run for President. With worldwide trade and business interactions between nations so prevalent it would seem the Congress needs to provide some legislation to address the issue in a fair manner for the current and future Presidents. Some have argued when Presidents put their assets in a blind trust that solves the problem, but they ignore the fact the Emoluments Clause has no provision for blind trusts; so one could argue a blind trust doesn’t solve anything. Any President with significant financial assets could make decisions that impact those assets in the positive or negative no matter where the assets are maintained. Does anyone really believe a person with 100 million dollars of Microsoft or Starbucks stock will forget about it if elected President. I doubt it. To provide some meaning is why the Congress passed the Foreign Gifts Act. Congress could dictate a blind trust, although they can and will be impacted by President’s actions. I don’t believe the Emoluments Clause applies to the President and never was intended to. Previous Presidents were allowed to maintain business interests while serving as President and I see that fact as a precedent and believe the courts will ultimately see it that way too. To say Hamilton conveniently left off the President from his list is a presumption not a fact, Congress accepted Hamilton’s list without question and that list has never been questioned by any Congress or court up until now.


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