The Volokh Conspiracy
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[This post is co-authored with Seth Barrett Tillman]
The Foreign Emoluments Clause provides that "no Person holding any Office of Profit or Trust under them [the United States], 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." Since 2017, plaintiffs in three lawsuits have argued that President Trump is violating this provision. Does the phrase "Office . . . under" the United States apply to the President? In a series of amicus briefs, filed along with the Judicial Education Project, we contend that this phrase is limited to appointed officials in all three branches of government. Therefore, the elected President is not restricted by this provision.
In 2009, the Office of Legal Counsel (OLC) stated, in a conclusory fashion, that the Foreign Emoluments Clause "surely" applies to the President. Three years later, the Congressional Research Service ("CRS") reached a similar conclusion: "The President and all federal officials are restricted by the" Foreign Emoluments Clause. To date, OLC has not revisited this position. (Though the Department of Justice has cast some doubt on the 2009 conclusion, stating that it was reached "without discussion.") CRS, however, has altered its position.
In 2016, CRS hedged a bit. CRS stated that the Foreign Emoluments Clause "might technically apply to the President." This change was significant, and warrants praise. CRS acknowledged that this issue may not be as simple and straightforward as once thought. And we attribute that shift to Tillman's scholarship in this area.
More recently, CRS has explained its revised position. On September 25, 2019, the House Subcommittee on Economic Development, Public Buildings, and Emergency Management held a hearing that concerned the Foreign Emoluments Clause. (We submitted a joint statement for that hearing, which we intend to blog about in a future post.) Michael A. Foster, a legislative attorney for CRS, submitted a statement. Only seven years earlier, CRS stated, without any analysis, that the President was subject to the Foreign Emoluments Clause. Now, CRS devoted nearly three full pages of analysis, with two dozen footnotes, to the "important threshold issue" about who "is subject to" the Foreign Emoluments Clause. The statement referenced the "significant academic debate about whether Office of Legal Counsel's conclusion comports with the original public meaning of the Foreign Emoluments Clause."
Foster's subcommittee statement cited Tillman's scholarship several times. First, CRS cites Tillman's textualist taxonomy, in which "the Foreign Emoluments Clause does not apply to elected officials such as the President, but only to certain appointed federal officers." (We discussed that taxonomy on the Volokh Conspiracy in 2017.) Second, beyond Tillman's "textual and structural arguments," CRS also cited "Founding-era historical evidence" raised by in our amicus briefs:
To support the view that the Foreign Emoluments Clause does not apply to the President, academics have observed that, among other things: (1) a 1792 list produced by Alexander Hamilton of "every person holding any civil office or employment under the United States" did not include elected officials such as the President and Vice President; (2) George Washington accepted gifts from the Marquis de Lafayette and the French Ambassador while President without seeking congressional approval; and (3) Thomas Jefferson similarly received and accepted diplomatic gifts from Indian tribes and foreign nations, such as a bust of Czar Alexander I from the Russian government, without seeking congressional approval.
Without a doubt, CRS also cited evidence and arguments that the Plaintiffs have relied upon which supports the contrary view. CRS, however, does not adopt one side of this debate over the other; rather, it flags legitimate arguments which exist on both sides of the issue. In doing so, CRS has now cast doubt on the Office of Legal Counsel's 2009 conclusion that the Foreign Emoluments Clause "surely" applies to the President.
In a subsequent post, we will discuss how the Department of Justice Civil Division has taken a position in recent briefs that is in tension with the 2009 OLC Opinion.