By William B. Turner
Some observers claimed that Donald Trump stood in violation of the emoluments clause of the Constitution the moment he took the oath of office. “Emoluments clause” is actually a bit of a misnomer, because the word, “Emolument” [the Constitution mostly follows the German practice of capitalizing every noun] appears three times in the Constitution. The third and especially the second are the ones at issue now.
The third time, in Article II, Section 1, reads: “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” This is not the one we’re most concerned with, but it is notable because it reinforces the point of number two, which is most relevant for our purposes.
The last paragraph in Article I, Section 9, reads: “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.” The clear import of this passage is that the Founders wanted to make sure that no public official serving under the Constitution was in any way in service or beholden to any public official for any other government. The logic of this seems obvious and impeccable. We want to make sure that our president is working for the US alone.
But Trump, as we all know, has business interests around the globe. Insofar as the real concern is to avoid having the interests of foreign countries impinge on U.S. policy making, one could make the argument that Trump violated the emoluments clause when he conveniently left nations where he has business interests out of his notorious Muslim ban.
Recognizing that a flat Muslim ban would obviously run afoul of the First Amendment’s prohibition on official religion in the United States, which must mean, among other things, that the federal government may not use anyone’s religious belief or practice as the basis for any policy decision, administration defenders of the ban tried to obfuscate the point by claiming that the real purpose of the ban is national security. But given that the ban omits Saudi Arabia, where Trump has significant business interests, but which is also widely known to have been the country of origin of most of the September 11 hijackers, it is hard to avoid the surmise that interests peculiar to foreign nations doing business with the president had a controlling impact on a U.S. policy decision – exactly what the emoluments clause is supposed to prevent.
If the point of the ban is national security, then why does it not apply to the nation that birthed the biggest actual insult to our national security since the Pearl Harbor attack at the beginning of World War II?
Admittedly, this situation does not seem to fall clearly within the plain language of the clause as it appears in the Constitution. We might better call this a new problem that Trump poses to the republic – one among many – that he is receiving payments automatically. An auto-emoluments problem. It would be a stretch to get a federal judge to run with this logic, but it is not unreasonable to look to the evil a legal prohibition aims at, then reason backwards to the prohibition itself and adjust it to capture forms of the evil that the prohibition would otherwise fail to prohibit on its face.
We do essentially this with what we call the “felony murder rule.” If one causes the death of another during the commission of a felony offense, even if one had no intention of killing anyone in the process, one may still be guilty of murder. Laws prohibiting murder aim to keep people from killing each other in criminal situations, but it obviously is possible to set out with the purpose of committing some other crime and kill another in the process inadvertently. It is not unreasonable to call that murder. Similarly, although Trump is not specifically being paid by the Saudis to alter policy, it is still not unreasonable to say that excusing Saudi Arabia from his travel ban leads to him benefitting from Saudi money. It’s a sort of chicken-and-egg argument, if both the chicken and the egg were egregiously corrupt.
Three lawsuits against Trump as president for violating the emoluments clause are currently underway. There are at least two immediate hurdles such suits face. One is the legal doctrine of standing, or: the point that a plaintiff must be able to show a “concrete, particularized” harm in order to sue anyone at all. This is a peculiar problem for any such broad constitutional rule as the emoluments clause. It’s why the birther movement couldn’t sue Obama. Imagine a world in which Obama really was a secret Kenyan, and therefore disqualified from serving as president. Beyond the claims of persons who oppose his policies, who can really say that s/he suffers any “concrete particularized” harm from having him in office?
Similarly, who suffers such a harm from Trump’s violations of the emoluments clause? One of the suits has pointed to owners of hotels and restaurants that compete with the hotel in Washington, D.C., that Trump owns. Not surprisingly, foreign governments have flocked to the Trump hotel since he took office as an obvious way to curry favor with the president, thus reducing custom at other hotels and restaurants. We have no control over the fact that foreign cultures lack the compunctions about thinly veiled bribery we have in the United States, but that is no reason for us to encourage their impulse to try to bribe our officials by deliberately choosing to do business with the companies those officials own.
The other problem is that the second emoluments clause expressly gives Congress the power to permit the president to receive Emoluments from foreign powers, which suggests that the correct authority for deciding the issue is Congress, not the courts.
But the suit that the state of Maryland and Washington, D.C. have filed has proceeded to the point that a judge has ordered the president and his business colleagues to preserve records that might relate to the case in anticipation of possible future discovery, or mutual disclosure of evidence. This could be the most important and interesting development in these cases because those records may well contain information, including Trump’s tax returns, that are relevant to other questions about possible criminal or otherwise unethical activities by the president.
So, whether regular emoluments or auto emoluments, they may end up posing serious problems for President Trump.