The Emoluments Clauses Litigation, Part 7: The President's Acceptance or Receipt of Profits is not "Executive Action"

|The Volokh Conspiracy |

Throughout the Emoluments Clauses litigation (See Parts 1, 2, 3, 4, and 5), we have made three primary arguments in amicus briefs filed with federal district courts in New York, the District of Columbia, and Maryland: (i) that the payments at issue are not "emoluments"; (ii) that the President is not bound by the Foreign Emoluments Clause and its "Office . . . under [the United States]" language; and (iii) the complaints were each filed against the President exclusively in his "official" capacity, but the conduct plaintiffs are complaining about is not "official" conduct. As such, the complaints were each improperly pleaded.

As we noted in the sixth part of this series, the Department of Justice ("DOJ"), which is defending the President, has failed to argue that the complaint was improperly pleaded. To the contrary, DOJ has maintained that this case is properly pleaded as an official capacity suit.

In the oral argument in the Maryland action, the government lawyer insisted that the President's acceptance of emoluments constituted "executive action." (Just to be clear: neither the DOJ nor we have conceded that payments involving business transactions for value constitute constitutionally forbidden "emoluments;" likewise, we have argued that the presidency is not encompassed by the Foreign Emoluments Clause's office … under the United States language.) Judge Messitte, like everyone else in the court room, other than those sitting at defense counsels' table, seemed very confused by Plaintiffs' position and the DOJ's (apparent) concession: i.e., that the President's purported illegal conduct is properly pleaded as an "official capacity" action. We do not (yet) have a transcript available, but the Court's questions suggested that Trump's business transactions, i.e., his accepting or receiving purported emoluments, actions which do not involve any federal government policy, could not be meaningfully characterized as "executive action." We agree. Indeed, even amici supporting Plaintiffs (at 12) acknowledged this very point.

When Trump (or a commercial entity Trump owns, in whole or in part) receives or accepts profits or payments, Trump's receiving or accepting those profits or payments do not involve "executive actions" or government policy. In other words, Trump is not acting in an "official capacity" when accepting these disputed profits. The parties' position fundamentally misunderstands how our constitutional structure applies to federal officers in their official capacity, as opposed to federal officers in their individual or personal capacity.

Two decades ago, Professor Laurence H. Tribe observed in Constitutional Commentary that there are "two ways, and two ways only, in which an ordinary private citizen, acting under her own steam and under color of no law, can violate the United States Constitution." First, she can "enslave somebody, a suitably hellish act." Why? Because the Thirteenth Amendment, which broadly provides that "slavery" shall not "exist within the United States," applies to private conduct. That is, if a federal officer enslaves a person under a government policy, he is violating the Thirteenth Amendment in his official capacity. Likewise, if a federal officer enslaves a person without regard to any government policy, he is still violating the Thirteenth Amendment, but in his individual capacity. The Thirteenth Amendment operates in both fashions. In an official capacity action, the government is the actual defendant, notwithstanding the fact that the complaint names a government officer as the nominal defendant. The relief sought is typically a declaration or injunction: an order to stop ongoing government illegality. By contrast, in an individual capacity action, the government is not the actual defendant. The defendant is a named officer, and the typical relief sought is damages. In the Maryland action, the Plaintiffs' allegations involving purported violations of the Foreign and Domestic Emoluments Clauses related to private conduct, not official conduct, much less official conduct taken to pursuant to any government policy.

The second way for private conduct to violate the Constitution, Tribe writes, "is to bring a bottle of beer, wine, or bourbon into a State in violation of its beverage control laws." Why? Because under Section 2 of the Twenty-First Amendment, "[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." That is, a violation of a state's prohibition laws is in fact a violation of the Constitution. Consider a scenario where New Jersey prohibits the importation of intoxicating liquors into the state. If the Mayor of New York City distills alcohol in City Hall, and, pursuant to a municipal policy and using municipal cars, ships the liquor from New York into New Jersey, he is violating the Twenty-First Amendment in his official capacity. If the Mayor of Albany, by contrast, brews beer in his bathtub at home, and transports it into New Jersey in his private vehicle, he is violating the Twenty-First Amendment in his individual capacity. Both actions are unconstitutional. But only the prior case would be properly pleaded as an official capacity action.

Though Tribe identified "only" two ways in which private conduct can run afoul of the Constitution, the Emoluments Clauses are (in our view) a third and fourth way.

Consider the the Foreign Emoluments Clause. It provides that those holding "office . . . under the [United States]" cannot "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State" "without the Consent of the Congress." (Because, in our view, the President is not covered by this clause and its Office-language, we will consider the Secretary of State, who, all agree, is so bound.) First, if the Secretary of State publicly "accept[s]" gifts from a foreign state pursuant to a government policy, or if the Secretary uses federal government property in order to accept the gift, he violates the Foreign Emoluments Clause in his official capacity. Second, if the Secretary, however, privately "accept[s]" gifts from a foreign state without regard to any government policy, and without using federal government property in the process of accepting the gift—that is, as a purely personal gift—then he violates the Foreign Emoluments Clause in his individual capacity. This conclusion is not changed if the gift was motivated by the fact that the Secretary is an officeholder. (Such a gift could also constitute "[b]ribery" for purposes of the Impeachment Clause.) Both courses of conduct by the Secretary are unconstitutional, but only one is properly pleaded as an official capacity suit.

Conceptual clarity is key here. The Twenty-First Amendment prohibits "transport[ing] or import[ing] . . . intoxicating liquor[]" into a state in violation of that state's law. The unconstitutional conduct is the unlawful "transporting or importing." As an evidentiary matter, it may be relevant whether the wrongdoer is paid for the alcohol, or whether the payor is motivated to buy that particular brand of alcohol in order to curry favor with that government officer. But these facts are irrelevant to the determination of whether the conduct is unconstitutional. Nor is the analysis changed one iota because a payor might pay a premium hoping to extract good will in a future deal with that officer or with the government he works for. (Again, above-market-price payments could also constitute "[b]ribery" for purposes of the Impeachment Clause.)

Where a wrongdoer violating the Twenty-First Amendment is a federal officer, his conduct might be challenged in an official capacity lawsuit or an individual capacity lawsuit. What capacity he is sued under does not hinge: (i) on whether his buyers are private individuals or state or municipal officers; (ii) on whether his buyers pay him with state or municipal money or property; or (iii) on whether his buyers are hoping to buy good will involving future transactions with that federal officer or the federal government. It is not the payor's conduct or motivation which determines whether the wrongdoing federal officer should be sued in an official or individual capacity. Rather, it is the conduct of the transporter or importer. If the transporter is a federal officer acting pursuant to an established federal policy or uses federal government property to "transport[] or import[]" the liquor, then it is an official capacity suit. Otherwise, it is an individual capacity suit.

Now consider the Foreign Emoluments Clause. A covered federal officer violates the clause by "accept[ing]" emoluments, gifts, etc., absent congressional consent. Here too, the donor/payor's motive might be relevant to establishing evidence of the federal officer's unconstitutional conduct. The unconstitutional conduct, however, is the recipient's conduct, that is "accept[ance]" of the emolument or gift. In terms of determining whether the federal officer's conduct is unconstitutional, nothing hinges on whether a foreign prince or government officer gave his own private money or his government's money as a gift, and nothing hinges on whether the motive of the gift was to enjoy future goodwill from the federal officer. If the "accept[ance]" by the federal officer falls under the scope of the clause, and Congress has not consented, it is unconstitutional. Here too, the fact that such conduct is unconstitutional does not tell us whether the covered officer should be sued in an official or individual capacity. If the federal officer accepted the purported illegal gifts or emoluments pursuant to some formal or informal, Executive Branch policy, but absent congressional consent, then the federal officer should be sued in an official capacity. Likewise, if the act of accepting the purported illegal gift or emolument made use of federal government property, that is, the sovereign's property, then the federal officer should also be sued in an official capacity. Otherwise, the federal officer should be sued in an individual capacity. These principles are basic. We think these are settled, well established principles, repeatedly announced by the Supreme Court and other federal courts.

The same analysis applies to the Domestic Emoluments Clause, which prohibits official and individual conduct by the President. In the Maryland case, the alleged unconstitutional conduct—Trump's (or his Trump-affiliated entities) "recei[pt]" of proscribed emoluments—is quintessentially private conduct, not official conduct. It is not official conduct because the conduct related to receiving the purportedly proscribed emoluments does not involve any "executive action," any federal government policy, or make use of any government (that is, the sovereign's) property. Hence, these actions cannot be properly pleaded as "official capacity" suits.

During oral arguments in the District of Maryland, counsel for the Plaintiffs represented that they would amend their complaint to include claims against the President in his individual capacity. (They have not done so yet.)

At this stage, we do not know if Plaintiffs amended complaint will bring their claims in the alternative (i.e., official and individual capacity claims) or exclusively as individual capacity claims. There is always the possibility that Plaintiffs will reconsider the position they took at oral argument—perhaps after consulting with their amici federal courts scholars—and choose to proceed with their current complaint, absent any amendment adding individual capacity claims.

Our next post will explain why a complaint against the President in his individual capacity is not likely to succeed: There is no cause of action (implied or otherwise) under which the Plaintiffs can sue.

NEXT: The Shame of Devin Nunes

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  1. Taking a step back from the trees to consider the forest for a moment. Let’s say that the government of the People’s Republic of China decided to offer Donald Trump the role of President of Taiwan – with a salary and actual authority over the province, but subject to the overall authority of the Chinese government. So he’d simultaneously be President of the United States and President of Taiwan. In your view, if I understand correctly, there’s absolutely no Constitutional objection to this – that’s not what the Framers had in mind by the Emoluments clause. If the Secretary of the Interior were to take this position it’d be a foreign emolument, but for the President to do so would be perfectly A-OK.

    Seems like a ridiculous conclusion, but I can’t see how you’d disagree. On the other hand, if you think that would be an example of a prohibited foreign emolument, why would it be prohibited, if the President is excluded?

    1. “…President or Vice President (of Taiwan) must be an ROC citizen, at least 40 years old, and a resident of Taiwan for a period of no less than 15 years with physical presence for not less than 6 consecutive months.”

      1. You win. I withdraw the question, and you have definitely proven that since Trump can’t be President of Taiwan, therefore the Emoluments Clause cannot apply to the President of the United States. Well done.

        1. Trump can’t be the President of Taiwan, but the requirement for the office of the President of the United States does not clearly prohibit persons holding dual citizenship, so while not applicable to Trump specifically, the hypothetical is still worth considering.

          The main problem with how you formulate it is that a foreign office is not an emolument, but then the constitutional clause at issue prohibits accepting foreign offices separately from emoluments.

          That still leaves open the question of whether the clause applies to the president or not. Personally I see at least some merit in the arguments on both sides of that issue.

          1. You might want to recalibrate your sarcasm detector.

      2. You win. I withdraw the question, and you have definitely proven that since Trump can’t be President of Taiwan, therefore the Emoluments Clause cannot apply to the President of the United States. Well done.

        1. (sorry for the double post – apparently no way to delete the dupe)

          1. Reason’s comment system does it all the time.

      3. I do not believe the government of China would care about the constitution of Taiwan when installing a ruler in it.

    2. “if I understand correctly, there’s absolutely no Constitutional objection to this – that’s not what the Framers had in mind by the Emoluments clause.”

      That the foreign emoluments clause does not apply to the President is not the strongest argument here.

      The strongest argument is that the normal business transactions of a business owned by the president are not emoluments under the clause.

      “If the Secretary of the Interior were to take this position it’d be a foreign emolument,”

      No it wouldn’t , but then the clause of the constitution at issue prohibits more than just emoluments.

      “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.[3]”

      So it wouldn’t be an emolument, but it is an office from a foreign state.

      1. I’m not convinced that owning a hotel where foreign officials rent rooms would be an example of an “emolument.” However, in this series of posts the authors seem to be going well beyond “this tree isn’t part of the forest, that tree isn’t part of the forest” to concluding “therefore, there is no forest.”

        In my opinion, if you put aside “legal logic” in which context is paramount and just apply regular, plain old engineering-style context-free logic, it seems clear that this clause is trying to prohibit a certain type of conflict of interest via an exhaustive list. It’s saying you can’t be “Duke of York” even if that’s just an honorary title, and you certainly can’t if it’s not just honorary but comes with some actual responsibilities, i.e., an “office,” and you can’t any money, goods, or other benefit (i.e., “emoluments”) even if you actually work for them – i.e., you can’t draw a salary or accept any in-kind benefit from the position. They aren’t mutually exclusive – there’s “even if…” statements.

        I get that in Legal Logic you can argue that you can’t prove I was there, and even if I was there you can’t prove I did it, and even if I did it, I didn’t violate the law, etc., etc. But those aren’t “parts” of an overall argument – they’re independent claims. By framing it as an “eight part argument,” the authors are presenting mutually exclusive possibilities – thus, as a purely logical exercise, the whole construct fails.

        1. “In my opinion, if you put aside “legal logic” in which context is paramount and just apply regular, plain old engineering-style context-free logic, it seems clear that this clause is trying to prohibit a certain type of conflict of interest via an exhaustive list.”

          I disagree. In my opinion (I am a computer programmer, no legal logic applied), it clearly prohibits only certain specific enumerated conflicts of interest. On it’s plain text, it is clearly not a general purpose conflict of interest clause.

          1. I’m a User Experience Designer, with a degree in Computer Science – so I’m with you on logic, and I have particular expertise in taxonomies / classification systems. What I’m arguing is that it’s defining a “class” – it’s a particular kind of class in that it must involve a foreign government, but it’s very broad within that class.

            It’s like if a lease prohibits “dogs, cats, fish, or pets of any kind.” Now I think any “regular” person would agree that if these typical pets are prohibited, then something like a chimpanzee would surely out of the question. I often see the (legalistic) argument, though, that’s it’s precisely the opposite. After all, a) a chimpanzee isn’t any kind of dog, cat, or fish; b) a chimpanzee isn’t a “pet,” and therefore this prohibition doesn’t apply, and c) the drafters of the lease surely didn’t have chimpanzees in mind, therefore, absolutely no problem with me keeping a chimpanzee in my apartment. I think that’s something like that’s going on here. The class is “pet,” and the definition is basically “any animal you might choose to keep as a pet.” The “dog, cat,” etc. are descriptions / examples, not limitations. Right?

            1. “The “dog, cat,” etc. are descriptions / examples, not limitations. Right?”

              Right.

              The problem is when you get into the emoluments clause you run into several problems.

              1 The clause prevents US office holders from accepting emoluments. It does NOT prohibit emolument holders from accepting US office.

              2. Any benefit / income Trump derives from his businesses through normal business transactions, he derives from those businesses, which are US corporations, not from any kind of foreign government even if those businesses do business with foreign governments.

              3. Emoluments is the only fit, Trump has clearly not accepted any sort of office or title from any foreign state. However historical practice goes against your interpretation of the term emolument, once modified by foreign state. The practice of modern presidents divesting or placing in blind trust, investments and/or business interests is a recent phenomenon. Many early presidents including George Washington continued to actively hold outside business interests. George Washington, similar to Trump, had real estate interests and even leased/rented properties to foreign diplomats while he was president.

              So even if trumps business income is and emolument, of any kind, which you have not even come close to making a case for, that income is not from “any King, Prince, or foreign State.”. so no violation of the emoluments clause even if the president is covered by it, which is not clear.

              1. I think it would be easy to argue that the chimpanzee is in fact functionally a pet. (I.e. pet could refer to any animal kept primarily for companionship). The more interesting case is a person who wanted to raise chickens for food. It seems to me the it would be a reasonable argument to use “pets” as a limitation on the restriction and to say that if the landlord had wanted to prohibit keeping food animals as distinct from pets, they could have said so.

                1. ReaderY, what I’m saying is I think any reasonable non-lawyer would read a clause like that and say if I can’t have a dog, then I certainly can’t have a chimpanzee. It’s only a lawyer who would argue that if I add something like “… of any kind, ever” that I’m making the result set smaller rather than larger.

                  Now that said, obviously there may still be boundary questions, e.g., what about service animals, or whatever. But in my view the authors are using a legal “piling on” tactic here, e.g., a service dog isn’t a pet, an ocelot is a cat but not a pet, a worm isn’t a dog, “keep as a pet” doesn’t include housing animals you intend to sell, etc., etc., that they end up claiming that therefore, my client can keep her Great Dane. It’s a lot of hand-waving to make the forest disappear by casting doubt on individual trees.

              2. Please re-read my comments, I have never claimed that Trump’s hotels should be included within the class of “emoluments,” to the contrary actually I wrote that I thought they probably weren’t. But this 8-part series goes considerably beyond that question – in fact I don’t think it even specifically addresses that question, it’s arguing about the nature of “emoluments” not the nature of Trump’s business dealings.

        2. “By framing it as an “eight part argument,” the authors are presenting mutually exclusive possibilities – thus, as a purely logical exercise, the whole construct fails.”

          Or each part stand independently as an independent reason why the plaintiff is entitled to any relief. Sorry, but the independence of each of the arguments in no way makes them mutually exclusive under any system of logic.

          1. stand->stands
            why the plaintiff is NOT entitled to any relief.

          2. I think the conflict here is the authors are trying to do two different things – set out some reasons why Trump should not be found in violation of the Emoluments Clause, but also try to set out a “definition” for what the Emoluments Clause actually is – “you guys have it all wrong, this is what it’s supposed to mean.”

            In the former, I agree with you that it’s “My client is not guilty because A OR B OR C….” but in the latter, it’s “The Emoluments Clause is A AND B AND C…” I think they’re trying not to make it specifically about Trump, but rather argue the larger point – but in doing so, they’re setting up mutually contradictory rationales.

            1. “but in doing so, they’re setting up mutually contradictory rationales.”

              Sorry, I just not see how they even come close to being contradictory. Independent yes, contradictory, not even close.

        3. “I’m not convinced that owning a hotel where foreign officials rent rooms would be an example of an “emolument.” ”

          I don’t think anyone is claiming this. I think the claim (apart from whether it’s factually or legally correct, justiciable, political question, plaintiffs have standing) is that owning a hotel where foreign officials rent rooms at a rate that is higher than the rate would be if the owner was not the President is an example of an emolument.

          1. nonzenze, I’ve heard that argument, but I don’t think the rate is actually an issue. First, “emolument” isn’t the right word as that’s just one example of what I’d suggest might better be referred to as a “foreign interest” or “foreign conflict” clause. My understanding is if you’re subject to the Clause (e.g., a retired officer in the US military) and you want to accept a job from a foreign state (e.g., a professorship at a state-owned university) then you have to get Congressional consent – even if you’re actually working, and just collecting a normal salary for that work.

            My personal thought is renting a hotel room to a foreign official isn’t a problem, but if there’s a negotiation involved, e.g., the foreign delegation wants to rent an entire floor for a week, then that would potentially trigger the need for Congressional consent, and whether the offer is at market rates might be a factor in whether or not that consent is given.

          2. That’s a difficult thing to determine given that hotels at that high end aren’t really fungible.

            Probably easier to determine whether the foreign officials rented the room at a higher rate than would have been paid by any ordinary person off the street.

    3. Steve,

      Some months ago you had some interesting comments about the 1793 Hamilton roll of officers. Here is my reply:
      Seth Barrett Tillman, Jonathan Hennessey on the Foreign Emoluments Clause: A Response, New Reform Club (April 29, 2018, 8:18 AM), https://tinyurl.com/y7aazon7.

      As I say in my post: there are no U.S. military officers on the Hamilton list.

      Seth

  2. To say it another way – if this series were framed as a set of arguments regarding Trump’s businesses, and why they aren’t violations of the Emoluments Clause, then it would be a series of “OR” statements – you can’t convicted him because A OR B OR C OR D… such that if any one of the clauses are true, then the overall argument is true.

    However, they’re framing the argument around the Emoluments Clause itself, not about this specific case, so it’s a series of “AND” statements – the Emoluments Clause is Part 1 AND Part 2 AND Part 3 … AND Part 8. Therefore, if any one part fails, then the entire argument is false – and since some of the premises contradict each other, the entire thing falls.

    BTW the whole “office under…” argument fails under a similar logic error. Each clause of the argument potentially works under “legal logic” which is contextual – but the way they’ve linked the clauses relies on an incorrect application of “regular,” i.e., context-free logic.

    1. Do you think that the Emoluments Clause is an all out ban on the President having outside commercial interests?

      1. This clause isn’t a “ban” at all – it is a requirement that officeholders seek Congressional consent. So my personal view is that arms-length transactions should be fine, but a long-term commercial agreement could potentially be a problem. Bottom line though is the clause contains its own resolution – the conservative approach is to simply go ahead and ask Congress. If Congress gives consent, then it’s not an issue.

      2. Of course not. The President can have outside commercial interests like a hotel.

        But surely charging $1,000,000 a night for the “Special Diplomat Suite and Package” that is sold to foreign officials/governments would at least raise suspicion that the transaction is not a purely commercial one.

        1. If the foreign officials are paying significantly above market, then that’s potentially a bribe or an illegal campaign contribution. As far as I can tell, the “Foreign Entanglements” clause is requiring Congressional consent for activity that would otherwise be legal – it’s aimed at preventing even the appearance of a conflict of interest with foreign states.

          1. But, again, this keeps getting back to the fact that early Presidents continued to have active management of their businesses, including sales to foreign diplomatic personnel, and nobody at the time seems to have thought that they were violating the clause.

            Which leads to the conclusion that, as originally understood, ordinary commercial transactions are not “emoluments”.

            1. Brett, I would agree that ordinary, arms-length commercial transactions would not seem to be included in the class of foreign relationships that require Congressional consent. I think there’s a difference, though, between officials from Her Majesty’s Government coming to the warehouse and buying your tobacco, versus being appointed “Her Majesty’s Official Supplier of Tobacco” (or whatever the language is that so many British companies have on their labels. That, to me, would clearly seem to create a conflict of interest that would require consent under this clause.

              Remember the clause isn’t triggered just be “emoluments,” it’s “any present, Emolument, Office, or Title, of any kind whatever.” So if the foreign prince is buying the tobacco because it’s the best tobacco, then fine – if they’re buying it because it’s Mr Trump’s tobacco, then that seems like it might present an issue. Once again, though, the resolution is within the clause itself – ask Congress for consent.

              1. Agreed on the first paragraph, but nobody so far as I know is alleging that sort of violation.

                I can’t agree with the second paragraph; So long as they’re paying the going rate, it really doesn’t matter what their motive for buying the product/service from a Trump branded company might be.

                1. How do you know what rates they’re paying? Have you seen the contracts? AFAICT, the author’s 8-part argument isn’t that any particular Trump transaction is exempt from this clause, rather that there is no transaction or foreign relationship of any kind that could require Congressional consent.

                  Given that you agree that a commercial relationship between Trump-owned properties and representatives of foreign governments COULD be subject to this clause (if they’re paying above-market rates, say) doesn’t it become incumbent on Trump to prove that they do not? That is, show the receipts? Or, if he doesn’t want to do that, go to Congress and ask for consent, which they may well be willing to give.

                  1. I don’t know what rates they’re paying, I’m trying to establish what you’d have to prove to nail Trump on an emoluments violation. The burden is on you to prove it, not me to clear him.

                    And, yes, of course a commercial relationship could be problematic, if they pay above market rates. But, no, it isn’t incumbent on Trump to prove they aren’t over-paying him. Innocent until proven guilty, Steve.

                    1. Brett, I disagree. The clause does not prohibit accepting gifts from foreign Kings, it prohibits doing so without having obtained consent. What your suggesting seems a lot like saying it’s OK for him to accept gifts as long as no one finds out. If there’s a gift-wrapped box sitting on his desk with a note saying “To Donald with Love from King Salman,” I don’t think he can claim he doesn’t need to obtain consent to accept it because as far as anyone knows it might just be an empty box, and we have to prove that there’s something in it before we can force him to request consent. This isn’t a guilt or innocence thing.

                2. I can’t agree with the second paragraph; So long as they’re paying the going rate, it really doesn’t matter what their motive for buying the product/service from a Trump branded company might be.

                  Simply saying “It’s the going rate” isn’t sufficient. Remember Jim Wright? People were buying his book as a bribe. They weren’t overpaying for the book, though. They were simply buying a lot of them.

              2. “I think there’s a difference, though, between officials from Her Majesty’s Government coming to the warehouse and buying your tobacco, versus being appointed “Her Majesty’s Official Supplier of Tobacco”

                I suppose you could argue that it amounts to a title of some kind.

                In my opinion, a business arrangement, even an exclusive one between a corporate entity and a foreign government can not be an emolument of any kind to any individual owner (even if the corporation is wholly owned by one person). Any emolument to an owner of the corporation is from the corporation, not from the foreign government with which the corporation does business, and as such does not fall with in the realm of emoluments requiring congressional approval.

                1. No, I think that goes too far, you could always view the corporation as just a way of laundering the emolument. Assuming there was one to begin with.

                  1. “you could always view the corporation as just a way of laundering the emolument.”

                    I would only accept that view as valid if you could show that money from the foreign state was being passed directly through to the individual owner, that it was kept separate from other corporate funds.

                    1. Yes.

                      My point here is that it’s certainly possible, given the right set of facts, to make an emoluments case against a President.

                      The problem is, there isn’t any reason to suppose those facts are present for this President.

                      The people bringing this emoluments case didn’t spot an emolument being accepted, and rush to file a case against a President they knew was guilty. No, they started with a President who they couldn’t stand being in office, groped around for some basis for removing him, and seized on the possibility that he had violated the emoluments cause.

                      Sentence first, then verdict, and only then did they start looking for evidence.

                    2. Brett, once again, you’re arguing about this particular lawsuit and these specific circumstances. You may be right, I’m not qualified to say. However – that’s not germane to the topic, which is whether ANY lawsuit could prevail. Blackman and Tillman are saying no – that there is NO CIRCUMSTANCE under which a President of the United States would EVER require consent of Congress. They have made the “forest” disappear. That’s what I’m objecting to, that the logic by which they’ve done that sleight of hand does not hold up.

                      In any case, accepting a present from a foreign King isn’t a crime. Not obtaining consent first is a violation of the Constitution – which is different from a “crime,” I believe. The remedy here isn’t impeachment – it’s a Congressional hearing followed by a vote on whether or not he can continue to own the hotel, or if he has to sell it.

                    3. However – that’s not germane to the topic, which is whether ANY lawsuit could prevail. Blackman and Tillman are saying no – that there is NO CIRCUMSTANCE under which a President of the United States would EVER require consent of Congress.

                      No; your first and second assertions are different. Blackman and Tillman are saying that the lawsuits wouldn’t prevail, not that there are no circumstances under which the consent of Congress is required. Just because there’s a rule does not mean that there’s a valid lawsuit to enforce it. The remedy is, in fact, impeachment, if Congress deems it appropriate.

                    4. David, please re-read Part 1 of Blackman / Tillman’s argument. They’re claiming that the emoluments clause doesn’t apply to the President at all – thus, there’d be no basis for impeachment either, under any circumstances. Hence my initial comment.

                    5. I’m pretty clearly doing both: Stating that I do believe there are circumstances under which a President would require consent of Congress to accept something, AND that this lawsuit doesn’t involve such circumstances.

                      And thus the remedy here is thus just throwing out the lawsuit, or maybe sanctioning it as a frivolous filing if they’re sufficiently confident the people who filed it knew better.

                      A Congressional hearing followed by a vote on whether or not Trump can continue to own the hotel? I think a strong case could be made for that being a bill of attainder. Owning a hotel isn’t an emolument, unless it was given to you as a gift. At most Congress might insist on a refund of money paid to the hotel.

                    6. Brett, I’ve never been arguing against you, I’m arguing against Tillman / Blackman. They’re the one’s claiming that there is no circumstance under which a President would require consent of Congress, because, inter alia, the Emoluments Clause doesn’t apply to the President in the first place.

                      Regarding remedies, perhaps Congress could simply require that Trump-owned businesses could not conduct business (or certain types of business) with foreign governments. Perhaps they could ask that it be put into a blind trust. This isn’t a bill of attainder, though, the requirement was in the Constitution the whole time – Trump knew going in that he had conflicts of interest, he made the choice not to address them.

  3. When Trump (or a commercial entity Trump owns, in whole or in part) receives or accepts profits or payments, Trump’s receiving or accepting those profits or payments do not involve “executive actions” or government policy.

    Yikes! That’s like saying in Citizens United that nobody will think its a source of corruption to buy influence in Congress with independent expenditures.

    Both statements assert propositions as a matter of legal logic which have a status in reality completely independent of what the law says. They are true or not on their own. You can’t make them true or false with a law or a court decision.

    1. Buying influence is always a campaign contribution, even when the money was given to a PAC?

      1. Not my point. My point is that millions of people (me included) think independent expenditures can be a source of corruption in Congress. When that is so, a Supreme Court decision can’t make the fact that they think it not so. So asserting the contrary as a finding of fact in a Court decision is truly foolish.

        I will go farther. I think when independent expenditures are made anonymously in large amounts?and made by donation to a PAC instead of for the purpose of direct political action by the donor himself?then fostering corruption is, in most cases, the likely, and most-likely-intended, outcome. But whether that is true or not has no bearing on the stupidity of asserting as a matter of law that nobody thinks it.

        1. Millions of Americans can think that burning the American Flag is disgraceful and should be illegal. TX v Johnson doesn’t say they were wrong. In fact, Kennedy more or less agreed.

          What it says (and what CU says) is that the legislature cannot pass certain laws. It says nothing about whether the factual basis for the law is true or false.

          1. Nonzenze, you are mistaken. The decision says this:

            We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

            Why do you suppose Kennedy wrote that?given that millions of Americans think the contrary? And the fact that they think it is indisputable and incontrovertible. Why stake your decision on an outright whopper like that one? An independent expenditure can’t ever give rise to corruption, let alone the appearance of corruption? That’s insane.

            The majority knew that challenges based on appearance of corruption would be easy to support. And avoiding the appearance of corruption had already been ruled a compelling government interest, for the purpose of passing strict scrutiny. So the majority wrote the decision to take that kind of challenge away, not caring whether they were lying about facts or not.

            I suggest that if you have to lie about facts to get a decision to come out where you want it to, the decision is wrongly decided.

        2. Maybe having Oprah endorse you on her show would be an incredibly valuable thing to a politician, sufficient to buy influence.

          But that can’t change the fact that Oprah has 1st amendment rights.

          Advocates of campaign censorship have been trying for some time now to get around the 1st amendment by describing free speech as corrupt influence buying. But it’s still free speech, and that settles it.

        3. Well it’s true that a Supreme Court decision can’t make you stop thinking that, but the fact that you think that doesn’t make it true.

        4. Corruption may indeed involve “independent expenditures” but it’s surely not the source of corruption. That would be simple human greed and selfishness, the immutable fallen human nature.

          Anyway, what are you going to do? Outlaw political speech? Jail or fine folks who try to make a movie criticizing Hillary Clinton?

          It appears we have a difficult time policing forms of corruption that are much more outright than merely engaging in political speech with some hidden or implied quid pro quo. Such as Foundations that rake in hundreds of millions from foreign sources they don’t disclose, which suddenly dry up along with the person’s political futures. Or when you miraculously hit a one in a million jackpot with cattle futures. Or amass a vast personal fortune while serving as Senator for Nevada.

          If you want to do something about corruption, free speech hardly seems like the first target.

          1. But, if you want to do something about free speech, regulating corruption makes a handy pretext.

  4. I can see a scenario where a foreign government bribes a U. S. President and launders the bribe money in the form of a seemingly-legitimate business deal with the Pres in his capacity as a private citizen. That would, I suppose, qualify as an emolument. But by saying the President has to *accept* the emolument, that seems to mean the Pres has to know it’s a bribe and takes the money anyway.

    Of course, it would be a great idea for the Pres not to operate side businesses while in office, just to reassure the public. But that applies to foreign and domestic business equally.

    1. Or they might launder a gift without it specifically being a bribe, and it would still be a problem, but the key would be that it’s a gift disguised as a legitimate business transaction.

      1. (This would also apply to a gift or bribe being laundered through a nonprofit foundation in a way that benefits a federal official)

    2. Probably the most threatening possibility is the President gets a loan he can’t repay, and then receives payment forgiveness on an ongoing basis. The overdue loan becomes a Sword of Damocles, leveraging unlimited covert influence for as long as the situation continues. From the first moment the President accepts even slight forgiveness, he is doomed to continue, because his compromised status enables a perfect blackmail.

      I have no way of knowing whether that is Trump’s situation now. I have not heard him say anything that would preclude it. For instance, Trump says he has no deals with Russia. But a Russian oligarch could have made a loan, and now be trading loan forgiveness to Trump in return for Kremlin-friendly policies. The Kremlin could even be paying the oligarch for his influence. That could all be happening without contradicting anything I am aware Trump has said.

      This is all just speculation, except the part about Trump not having said anything to rule it out. The way to rule it out is for Mueller to get Trump’s tax returns and other financial documents, and be sure there is nothing in them which proves otherwise.

      1. So basically what’s going on is that you’ve imagined a scenario where Trump is guilty, subject to blackmail. And you want it taken seriously because, despite the lack of any evidence that it’s true, nobody has proven that it’s false.

        But that’s not the way things work, “guilty until proven innocent”; Until you can produce some evidence that your scenario is true, not conclusive evidence, but SOME evidence, their isn’t any basis for investigating it. We don’t spin out possible scenarios where people might be guilty, and then go digging into their lives on the off chance they’re true.

        1. Brett, I don’t think anyone (including the President himself) disputes the fact that he does business with foreign governments. The question to be investigated isn’t whether or not he accepts payments from those foreign governments, but rather whether or not those payments or other financial arrangements fall into the category of “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

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