emoluments clause

George Washington and the Emoluments Clauses

The Practices of our First President Suggest That President Trump is not violating the Foreign and Domestic Emoluments Clauses

|The Volokh Conspiracy |

Today, President Trump offered comments about the Emoluments Clause. Here is a rough transcript of his remarks:

Other Presidents, if you look, other presidents were wealthy. Not huge wealth. George Washington was actually considered a very rich man at the time. But they ran their businesses. George Washington, they say George Washington had two desks. A presidential desk and a business desk. I don't think you people with this phony Emoluments Clause. . . .

His jab at the "phony Emoluments Clause" has garnered the most attention. But his reference to the practices of President Washington is far more significant.

Over the past two years, Professor Seth Barrett Tillman and I have written extensively about the practices of President Washington. We contend that the practices of our First President suggest that President Trump is not violating the Foreign and Domestic Emoluments Clause. The former provision does not apply to elected officials like the President, and the latter provision does not prohibit business transactions. We have also submitted many amicus briefs on this issue.

Here are some of our recent writings on this issue:

  1. The Congressional Research Service Has Shifted Its Position on Whether the Foreign Emoluments Clause Applies to the President, The Volokh Conspiracy (Oct. 3, 2019).
  2. The Office of Legal Counsel Has Not Shifted Its Position on Whether the Foreign Emoluments Clause Applies to the President. But the Civil Division Has, The Volokh Conspiracy (Oct. 4, 2019).
  3. Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?, Volokh Conspiracy (Aug. 3, 2018).
  4. The 'Resistance' vs. George Washington, Wall Street Journal (Oct. 15, 2017).
  5. The Emoluments Clauses litigation, part 2 — the practices of the early presidents, the first Congress and Alexander Hamilton, Washington Post (Sept. 26, 2017).
  6. Yes, Trump Can Accept Gifts, New York Times (July 13, 2017).

I hope to have more to say about this topic with Professor Tillman later this week.

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  1. Yeah, right. Imagine the Republican reaction had a president with a D after their name made this sort of argument.

    Any government official at any level caught awarding themselves (their own businesses) contracts would be facing criminal indictment. But here we are: the president needs a boost of sales so he orders a major diplomatic event to be held on his own property and is amazed that anyone could object. And his supporters believe he is the victim here.

    Note how they lament that they will now have to find a new place. That means that they never even considered sending the contract out for bid. Had they done so they would have simply shifted the award to the #2 bidder. There was no #2 bidder or any other because there was no bid. OMB is pretty much Trump’s personal ATM now.

    1. Wait. Didn’t Mulvaney say that had considered a lot of other places and, on purely objective criteria, Trump’s failing resort came out on top?

      Brace yourself. We’re about to hear a lot of nonsense rationalization in the guise of legal analysis.

      1. Why should the why matter? The resort only has so many rooms to rent. Unless Mulvaney paid more than the standard quoted rates, Trump makes not 1 extra dollar for having Mulvaney stay there vs anyone else staying there.

        1. Never mind, not the case I was thinking of. Yeah, self dealing and directing federal contracts to his own businesses wouldn’t be good.

        2. [Noting your “nevermind” but I’d like to address the core argument you make regardless.]

          “Trump makes not 1 extra dollar for having Mulvaney stay there vs anyone else staying there.”

          There are not just two options here–there are three. Mulvaney stays there, anyone else stays there, no one else stays there. The financial issues with Doral, according to various news reports, appear to be related to the latter. So having Mulvaney stay there, even at a cost-only basis, is revenue Doral wasn’t likely to receive in the first place.

          1. “So having Mulvaney stay there, even at a cost-only basis, is revenue Doral wasn’t likely to receive in the first place.”

            But Trump’s earnings as an owner come from profits, not revenue.

            1. Yes, but there is a lot of profit in the rent from an otherwise empty room. The marginal cost of renting out a room is small. Most of the cost of the facility is fixed.

              In other words, a lot of the revenue falls through to the bottom line.

              1. Sorry, the fixed cost still come out of gross revenue when determining profits.

                Profits = total revenue – total costs. There are NO profits for a large hotel renting a single room.

                1. The point is that if the hotel has an empty room, and suddenly rents it out for, say, $150, most of that $150 falls through to the bottom line. Whatever the profit would have been with the room empty, it will be maybe $100-125 greater if the room is rented.

                  Fixed costs, which are the bulk of costs, don’t go up, and there’s not a lot of variable cost. Sure, you have to clean the room, there are some administrative costs, and so on, but these costs don’t come anywhere near the rent received.

    2. Something like this doesn’t go out “to bid.” There’s a search committee, site selection process, and so on. Which there was for this process.

      1. “There’s a search committee, site selection process, and so on. Which there was for this process.”

        This reminds me of Augie Busch’s worldwide search for his successor (as president and CEO at a public company, Anheuser-Busch), which ‘search committee . . . selection process . . . and so on’ led to . . .

        the selection of his son, August Busch IV.

        Who turned out to be a zero. His family lost the company. The only Busch left at Anheuser-Busch today is the name on the label.

        1. Sounds like August Busch IV was a liberal. Stupid, incompetent, and lazy.

        2. Can’t afford Doral can you? Let go of the envy, it’s not healthy.

      2. Right, A.L.

        It was totally objective. You believe that? Really? Really?

        1. See my comment below for how the search committee worked, and how it specifically excluded Trump properties.

          1. If it excluded Trump properties, how did it end up choosing one?

    3. I don’t have to “imagine the Republican reaction had a president with a D after their name” got money for their own business contract – I remember it. I also remember that reaction being basically nothing.

      Or do you have some other explanation for the Clinton’s increase in wealth rather far beyond what could possibly have been saved from presidential earnings? Or the Obama’s?

      1. Rossami, what government contracts did the Clintons direct to themselves?

        1. Every foreign government speaking fee received during his presidency?

          1. Clinton charged speaking fees while he was President?

            Got a cite for that?

      2. The truth is that any President these days will be handsomely rewarded on the completion of their term. There will be a book deals waiting for them. They will move to the first tier of paid speakers. They will likely get paid spots on university and business boards. They get a government pension, money for living expenses and healthcare. None of this is really a conflict of interest because they are out of office. They are paid for their celebrity and for knowledge gained in the office.

        1. Except that according to their tax filings, they received many of those benefits before leaving office.

          Mind you, I’m not singling out the Ds. This has been a bi-partisan abuse for a long time. Truman might be the last president who didn’t exploit his office. (Though given Truman’s history of business failures before the presidency, maybe he was just ineffective at it. In which case, go back to Coolidge.)

          1. One significant difference is that, assuming someone believes prior presidents gained wealth unethically while in office, they at least did so in a manner that was discrete–discrete enough that you haven’t made the effort to list specifics.

            Whereas, Trump is doing it right out in the open. There is no real debate of whether it is happening but merely whether he will get away with it. Regardless of whether you think every president, or just every modern president, has unethically and illegally enriched themselves while in office, this current president is doing it openly and setting a new standard for the next office-holder.

            1. Alternative interpretation one is that they all did it right out in the open but the media didn’t care until Trump.

              Alternative interpretation two is that they all did it right out in the open because it wasn’t and isn’t really illegal. (It may be unethical but caring about politicians being unethical has been a waste of effort for centuries.)

              Whichever interpretation you prefer, there is no evidence in support of your claim that prior presidents were any more or less discrete.

          2. What support do you have for those allegations? I’ve looked through the Clintons’ returns – you can find them online here – and I don’t see that Bill received speaking fees or book royalties or board member fees while he was president. After he left office, definitely, almost $14 million in 2004, but not before.

          3. they received many of those benefits before leaving office.

            More specific, please.

    4. Imagine the Democrat reaction had a president with a D after their name made this sort of argument. Thats right. this is politics as usual and not a big deal at all. Its not like he even tried to hide it and like actual experts have pointed out Presidents have done this before without controversy.

      1. “Presidents have done this before without controversy”

        OrangeManBad trumps everything.

        1. “Whitewater” = “no controversy?”

          1. Whitewater occurred before the Clintons got anywhere near the White house.

            1. But the fuss happened AFTER they got near it.

              1. Before and after; The actual legal problems began long before the Clintons were anywhere near the White house, and simply got more press once they were there.

                1. Right. So it wasn’t anything they did while Clinton was president.

    5. Obama just bought a $14M seaside (so much for the global warming crisis) mansion. He was paid to make speeches. He must have made a lot, and far more relative to what he started with 8 years before than whatever Trump is making.

      If money corrupts, which one has been corrupted more?

      Oh wait, I see, it’s only foreign money which corrupts. OK, let’s shift to Hillary and Bill. How much did that fund rake in during her short career as Secretary of State? Last I heard, they had hardly distributed any of it, and most of it was foreign money. And she and Bill has been practically in the poorhouse when they left the White House.

      Again, which money corrupts and how much?

      1. As I’ve replied before to this silly argument
        1. Unlike cowardly Trump, Obama released all his tax returns for both during and before his presidency. His and his wife’s books raised about $14 million during that time.
        2. At the moment he earns about 500K per speech. It wouldnt take many to support a mansion

        1. So, this does actually raise an interesting question, which is the domestic emoluments clause.

          “The President… shall not receive within that Period any other Emolument from the United States, or any of them.”

          So, there are a few ways you could interpret both Emoluments (as an item of value) and the United States. But the most DIRECT violation is as follows.

          In President Obama’s 2015 financial disclosure, it was revealed he owned between $500,000 and $1 Million worth of US Treasury Bonds. These bonds paid interest (an item of value) directly from the United States Treasury, to President Obama.

          Is this, an emolument clause violation, and should Obama have been impeached over it?

          1. Perhaps you think Treasury Bonds should apply? What about the US Government buying items a person gets royalties on? In 2011, the US State Department bought over $70,000 worth of books authored by President Obama. Obama would clearly get royalties on these books. Thus, this is another emoluments clause violation, correct?

            Purchases from the US government are directly profiting the current President. Is this wrong? And should Obama have been impeached in 2011 because of it?

            1. Something interesting to explore with this idea is whether or not Presidents can even have money prior to seeking office. If a President were invested in any sort of mutual fund, they most certainly would own T bonds and T bills to a minor extent.

              1. That says something about the spread of the US Federal government….

                Still, Obama could have diversified.

            2. “Obama would clearly get royalties on these books.”

              Clearly, despite your lack of any evidence of any kind that this is or was true. Let’s see some contract terms that make this “clear”.

              1. Obama’s 2011 Tax returns. Here’s a quote you can google.

                “Today, the President released his 2011 federal income and gift tax returns. He and the First Lady filed their income tax returns jointly and reported adjusted gross income of $789,674. About half of the first family’s income is the President’s salary; the other half is from sales proceeds of the President’s books”

                Bonus. That’s a real quote, anyone can Google and find, unlike the fake ones you insist on writing.

                1. And when were these books written?

                  1. Here’s the thing… it DOESN’T MATTER when the books were “written”. Anymore than it matters when Trump bought Miami Trump Doral, if you’re arguing that is an emolument clause violation.

                    What matters is that the State Department deliberately used government funds to buy books written by President Obama, while Obama was in Office, thus directing government funds (via royalties) towards Obama.

    6. Various state department posts in other countries tries all bought and stocked both of Obama’s memoirs while he was in office. Republicans didnt give a shit because they arent idiots.

    7. Likewise, ” Imagine the Democratic reaction had a president with a R after their name made this sort of argument. ”

      The dumbest form of political argument is hypocrisy.

  2. The emolient clause doesn’t sound softening or soothing to me.

    https://www.merriam-webster.com/dictionary/emollient

    Wait, you said “emoluments.”

    Never mind.

  3. Trump made two mistakes here. One of process, the second of image.

    The first mistake was that his properties were deliberately kept off the initial search criteria due to the appearance of a conflict of interest. If he wanted them considered, he should’ve have kept his hands off the search process, except for saying they should be considered in a fair and even bargaining process.

    The second mistake he made after the search process was one of just saying it would be “at cost”. Trump knows “at cost” can mean many different things. If Trump really wanted to be generous here, he would’ve said the resort would offer its services “for free”. There still would be an uproar, of course. But it would be much, much harder to argue that Trump was enriching himself.

    1. He didn’t make any mistakes at all.

      He wanted it at his site and made sure it was selected. Having it for free was never in his mind. It would have been antithetical to his objective – putting a lot of money in his pocket.

      Are you keeping a straight face as you post these comments?

      1. The whole getting rich on every sale, meme is tiresome.
        The is a difference between gross and net. The gross take is one thing. The net after expenses, quite a lot less. Maybe even a negative. My guess, the net of the G7 would be less then 6 months salary, that the President is turning down. Because he is such a money grubber.

        1. “My guess, the net of the G7 would be less then 6 months salary, that the President is turning down”

          My guess is that you’re off by at least two orders of magnitude.

      2. Sigh… The actual money earned in such an endeavor would be minimal.

        If you want to argue fame, prestige, ect, that would be different. But the cost of hotel rooms and renting out the facility? Honestly, a rounding error in the budget.

        1. My guess, the net of the G7 would be less then 6 months salary, that the President is turning down. Because he is such a money grubber.

          Sigh… The actual money earned in such an endeavor would be minimal.

          You guys have seen the books, and know how many rooms would be rented, at what price, etc.?

          Ridiculous. You really have become delusional Trumpbots.

          You do understand, btw, that a big chunk of the costs are fixed, so the rent from a room which would otherwise be empty contributes a lot to the bottom line?

          1. Doral has been having trouble filling rooms because the Trump brand has lost its luster.

            Filling a room that would otherwise be empty, even if it is filled “at cost”, is a huge win for a resort that is struggling to attract customers.

          2. Sigh…

            Bernard, besides the fact that the Presidency has almost certainly lost Trump millions in income (There’s a reason multinational corporations don’t embrace one political party…it alienates 50% of consumers), you need to realize Trump makes more than a hundred million in income per year. The additional net income from an event like this might be a million…at best.

            Moreover, it the room costs are really “at cost”, it’s not necessarily the list price (which only applies if the room would be otherwise filled), but the turnover price (IE, the cost to clean the room and replace the consumables). It depends how “at cost” is calculated. Of course, a nice audit would be called for, given the visibility.

            1. “There’s a reason multinational corporations don’t embrace one political party”

              Really? Where you been lately?

              1. Multinational corporations tend to hedge. They want both parties beholden to them.

                1. Media corporations typically don’t. They go all in for one party, and in return expect protection from the other.

            2. “…Trump makes more than a hundred million in income per year.”

              Objection, presuming facts not in evidence.

            3. Accumulation of money for those who are into it is not a cost-benefit proposition.

              Every million counts!

            4. Stop with the bullshit “sigh.”

              You have no idea how much income the event would generate, so stop pulling estimates out of your ass.

              You also have no idea what Trump’s annual income is. Now, if we could see his tax returns….. But so far we haven’t, so you’ll pardon me if I doubt his income is $100 million/year.

              Regardless, though, it’s a scummy decision by one of the scummiest people on earth, and only a blind Trump worshipper would defend it.

              1. Sigh. Just because you don’t do basic research about these things, doesn’t mean other people can’t.

                1. “You have no idea how much income the event would generate”.

                We can draw reasonable estimates for ballpark revenue. Assume the entire 700 room hotel is booked, every room for the event. Then assume an average room rate of $200 a night (Check how much they’re going for online, right now). Then, 3 nights at the Doral resort (the G7 last 3 days), plus 1 extra night on each end for bookends. That’s about $700,000 dollars. That’s almost certainly a high estimate, but puts us in a rough ballpark. Say, +/- 50% on the estimate.

                2. “You also have no idea what Trump’s annual income is.”

                We do actually. As President, Trump is required to do financial disclosures as part of Government Ethics. Which are…publically disclosed. I encourage you to have a look. It shows income well in excess of $100 Million.

                3. “Only a scummy person would defend it”

                It was a poor choice in terms of public appearance. It could’ve been an excellent taxpayer choice however. Having it at cost would be quite nice, and beat out competing bids. And it’s directly across the street from US Southern Command, and it’s top of the line secure communication facilities.

                1. We can draw reasonable estimates for ballpark revenue. Assume the entire 700 room hotel is booked, every room for the event. Then assume an average room rate of $200 a night (Check how much they’re going for online, right now). Then, 3 nights at the Doral resort (the G7 last 3 days), plus 1 extra night on each end for bookends. That’s about $700,000 dollars. That’s almost certainly a high estimate, but puts us in a rough ballpark. Say, +/- 50% on the estimate.

                  Apparently you think that nobody at the summit will be eating or drinking.

            5. you need to realize Trump makes more than a hundred million in income per year.

              What I realize is that you haven’t seen his tax returns.

        2. “The actual money earned in such an endeavor would be minimal.”

          Hotel complexes make money by providing shared workspaces and overnight accommodations to people who need to be able to work and stay in locations away from their homes. This is how they make their money. If they wouldn’t have made much money on the event, it is because they are mismanaged or poorly located.

          1. Or, if is was being run “at cost”…..

    2. Genuine question: If a location is picked and that property needs, say, several million dollars of work to make it ready (security upgrades, communication upgrades, etc) for a high-level event like the one at issue here . . . who normally picks up the tab for this work? The facility? Or our government? (If it’s the government, then Trump obviously would have hugely benefited, even if he donated the space–or was legally permitted to donate the space. If it would be the facility itself who pays, then my question is moot.)

      1. So, this I’d considered, albeit not in the upgrade context.

        The most expensive part of the G7 conferences is typically security. The extra police, and so on required to ensure the safety of everyone. That I wouldn’t expect the resort to pick up, but the government to pay for separately. That security can run into the tens of millions of dollars.

        If a facility requires unique upgrades to make it feasible for a government contract, typically these upgrade costs will be written into the contract, and the facility will then do the work at the prescribed costs. If a facility is donated (including the typical services), I would expect the government to cover the costs for any unique upgrades.

        As to the actual value of such unique upgrades, that’s a different question. A million dollar security upgrade that it only really needed for this one event, isn’t really of value after the event.

        1. There are a lot of questions about how much this will really make for Trump. As the commenter noted the upgrades would likely be made in the contract. The question is will that be an open bid or could the upgrades be padded. There has been charges of money laundering at Trump properties and would that happen here? Say the kitchen need upgrading to serve all the guest. A million dollar upgrade goes to a contractor who then books a 200 thousand dollar party at a different Trump property. I would want a independent accounting with a public report.

          1. You really expect that this high a visibility project wouldn’t be heavily audited by every organization in the DNC’s orbit?

            Trump’s better off not doing it. He dodged a bullet.

            The more I think about it, the more I think the Democrats blew it. This could’ve been the give that kept on giving. Investigation, audits, every last detail scrutinized for crimes, padding, and “extra” money going to Trump?

            1. There are two forks of possibility.

              1) Trump wanted his property to host the event because he expects to profit by doing so.

              2) Trump wanted his property to host the event because any other reason.

              If it was 1, then you can be assured that any method that would increase Mr. Trump’s personal profit would have been used.

              If it was 2, then, if given a choice, where one choice would add to Trump’s personal profit, and another choice would not add to Trump’s personal profit, which would you expect him to choose?

              Either one produces a heck of a lot of appearance of conflict of interest. Maybe the guy suddently develops a disinterest at trying to cheat people at every opportunity. But that isn’t the way I would bet.

            2. If he did dodge a bullet it was one he fired at himself.

              So you’re saying he’s a moron.

  4. I look forward to Prof. Blackman’s rousing defense of Pres. Trump after an unraveling Donald Trump shoots and kills someone on Fifth Avenue.

    Is there anything Pres. Trump could do that a Republican climber wouldn’t strive to defend, praise, or excuse?

    1. As long as the “someone” is a barking moonbat like this disgusting hag excuse for a woman, I would defend him ardently.

      https://twitter.com/SergioGor/status/1185329130922860544?s=20

    2. Many Democrats have legalized killing babies with fully developed nervous systems and senses that are identical to born babies for all relevant intents and purposes and I don’t see you or very many other progs rising out of your seats in righteous indignation. Wheres your redline of moral outrage?

      1. Many many Republicans as well. (Including me.)
        I come out on one side of the trade-off between killing a fetus and forcing a woman into undergoing an enormously dangerous medical procedure (ie, giving birth, as compared to the much-safer abortion procedure), as I see forcing a woman to do this as akin to slavery.

        The difference between us is that I assume that you are making a moral argument in good faith, while it seems that you are incapable of imputing good faith into the pro-choice side’s argument.

        1. Lol, wait so the procedure that results in a nearly 100% death rate is safer than pregnancy? Must be that sterling reasoning leftwingers are known for. Also, the underlying assumption in your argument is that the baby is somehow less of a person when I already pointed out I was talking about full term babies that the Democrats gleefully legalized killing. This argument doesn’t work until you can explain logically why it is moral to kill a baby at 9 months-1 day but not a baby at 9 months.

          1. Amos,
            There is no need to be such a dick. I know countless Democrats, and there is literally not one who is “gleeful” about abortions. It’s pretty much 100% that people find the procedure distasteful (especially the tiny fraction that occur late-term), but far far better than forcing women to give birth against their will. You could make almost the exact same point you did without lying about the putative joy that those evil Dems feel re abortions. I guess having such an extreme and delusional via of them must make it easier for you to demonize them. But it’s hardly intellectually honest, and it makes it infinitely less likely that your words will have a desired effect on the those few who are still persuadable on this issue.

            p.s. I was comparing the danger to the pregnant woman: giving birth vs having an abortion. Again, you knew this, but still felt the need to be intellectually dishonest. Which is your right, of course.

            1. “but far far better than forcing women to give birth against their will.”
              >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

              Pure rhetoric. Why is it ‘better’? People are forced to do things they don’t want all the time that majorly inconvenience them or put their lives at risk for the ‘greater good’. Tons of men are forced into 18 years of servitude for kids that are not even theirs, forbidden to even get a paternity test, Cake shops are put out of business and have their livelihoods destroyed. Students lives are derailed by college tribunals because they had sex once when drunk. Millions have been drafted into war. What makes pregnancy so uniquely deserving of discharge compared to this?

              Most of this stuff which your side happily supports doesn’t even directly have another life with inherent rights in the balance. If gender pronouns is a worthy cause to destroy someone’s career over surely saving another being’s life is too?

              Plus you get tons of opportunities to not assume this burden, tons of pills and procedures to reverse it and 9 months to think it over and you get to dump your kid afterwards no questions asked. In what other area of life do you get as many takebacksies? Sorry, I know things are tough but there has to be a limit somewhere which is far more than those other guys I mentioned get. Speaking of which, how many would trade up for the ‘unparalleled torment’ of pregnancy? I reckon more than a few.

              >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
              “and it makes it infinitely less likely that your words will have a desired effect on the those few who are still persuadable on this issue.”

              >>>>>>>>>>>>>>>>>>>>>>>

              On practically every major issue progs are far more extreme than they’ve ever been while the mainstream opposition is about as weak and vacillating as ever or even more so. You need look no further than this topic, where even among libs ‘a necessary evil’ used to be phrase. But now…well lets just say Prof Somin isn’t exactly vanquishing ANTIFA left and right with his beams of pseudocenter right ideals.

              >>>>>>>>>>>>>>>>>>>>>>>>>>>>>
              “t’s pretty much 100% that people find the procedure distasteful”
              >>>>>>>>>>>>>>>>>>>>>>>>>>>>>

              Yep sure looks like it to me….
              https://en.wikipedia.org/wiki/ShoutYourAbortion

            2. Oh I almost forgot, you didn’t answer my question. If a mother should be allowed to freely kill her baby 1 minute before birth, why can’t she kill the baby 1 minute after birth or 5 minutes or an hour or 6 months after?

              1. Amos,
                Because the law has made a distinction between an unborn fetus (even 5 minutes before birth) and a 5-minute-old newborn.

                That’s the legal answer. If you are asking the moral question: Then you and I are largely in agreement–IF the reason for the abortion was known to the woman well in advance of that time.

                (My position is informed by my mom’s experience. My oldest brother was born with a fatal heart condition and died within one week of birth. His life was horrific–full of unending pain, never got out of the ICU, and the experience was traumatic for my mom and my dad . . . something that affected both of them for the rest of their lives. I wish my mom could have had an abortion at any point before the child came into this world. Sadly for everyone, the technology did not exist to know in advance his condition, although thankfully it does now.)

                Your mileage may vary, obviously. We all are shaped by our own family’s experiences.

              2. “If a mother should be allowed to freely kill her baby 1 minute before birth, why can’t she kill the baby 1 minute after birth”

                If you start with a false premise, you can prove anything.

        2. Is it slavery, when it is nature itself that puts the onus on women to have children for our species to continue to exist?

          Is it slavery that I am forced to work for my daily bread? No. That’s just nature. We don’t have a universe where homeostasis happens by default. What injustice has been wrought that we will suffer the indignities of old age and eventual death! Why, that’s just nature.

          1. You know the saying. “Give me liberty, and give an innocent child death.”

            1. I like all the question begging, but I especially like the implication that there are some guilty children out there who deserve death.

              1. A 9 year old just burned 5 people to death. I’d say he deserves the death penalty if convicted.

                1. Sure, but your super bloodthirsty in general.

              2. How about this one.

                “Believe in something.
                Even if it means sacrificing someone else.”

                1. How about this one. Don’t have a debate about abortion in the comments sections of a post about the emoluments clause.

                  1. Yea, well someone who wanted to ban guns *would* say that. 😉

        3. Yeah, I always think those who profit off of the death and dismemberment of babies should be assumed to be acting in good faith. History is full of such misunderstood actors overflowing with good faith.

      2. “Many Democrats have legalized killing babies with fully developed nervous systems and senses that are identical to born babies for all relevant intents and purposes and I don’t see you or very many other progs rising out of your seats in righteous indignation.”

        You’re upset that people aren’t outraged by things that happen in your imagination?

    3. Yeah, he could express solidarity with the vile anti-Semitic socialists/communists in the Democrat party.

  5. We have also submitted many amicus briefs on this issue.

    No wonder you’re upset about that $200 fee.

    Don’t you have classes to teach?

  6. Article I, section 9 is the emoluments clause.

    Article II, section 3 specifies that the President shall commission all officers of the United States.

    Article II, section 4 specifies that the President, the Vice President, and all officers of the United States can be impeached….

    Therefore, the President cannot commission himself, or the VP (they are elected). And the wording of section 4 implies that the President is not an officer of the US, so the emoluments clause does not apply. Further, many presidents over the years have accepted outright gifts, without the permission of the Congress.

    1. The Foreign Emoluments doesn’t apply to “Officers of the United States”; it applies to “Person[s] holding any Office of Profit or Trust under the[ United States].” Different terms within a legal document are presumed to have different meanings.

      1. “Office of Profit or Trust” may not include the President at all. Or maybe it does.

        There are arguments both ways.

        1. Sure. But the claim that the FEC doesn’t apply to the President because he’s not an “Officer of the United States” is clearly wrong

    2. ” Further, many presidents over the years have accepted outright gifts, without the permission of the Congress.”

      So what?
      The fact that impeachable offenses happened in the past but the House of the time chose not to impeach does not impose a restriction on the present House to choose not to impeach if the same impeachable offenses occur.

  7. The Foreign Emoluments doesn’t apply to “Officers of the United States”; it applies to “Person[s] holding any Office of Profit or Trust under the[ United States].” Different terms within a legal document are presumed to have different meanings.

  8. Law office history. Get a professional historian on the case. Or just read a Washington biography.

    1. The problem with good historical writing is that there is too much nuance, or rather that the evidence tends to not cut in one direction or another. Robert Ralph Davis Jr.’s article “Diplomatic Gifts and Emoluments: The Early National Experience” The Historian 32(3): 376-91 (1970) is a good example of such writing. The brief article provides a good introduction to the practice of foreign nations attempting to give gifts to American Ambassadors (with a focus on the writings of John Q. Adams), but it doesn’t contain a clear thesis that would support the desired legal argument. If anything, the repeated mention of “republican simplicity” as a guiding principle opposed to receiving emoluments from foreign governments cuts against the argument that Blackman wants to make.

      Law office history is the simply legal argumentation using historical references in place of (or complementing) judicial decisions. Instead of saying “my client seeks this outcome so let me find the case law that supports it,” the law office historian says, “my client seeks this outcome so let me find the historical evidence that supports is.” History then becomes an instrumental source, rather than an informative source that might help guide decision-making in the contemporary dispute. Good historians also employee far too much hedging in their writing, typically reflecting the lack of certainty on any single conclusion. None of this helps when your trying to influence outcomes in a desired direction and make a name for yourself in the elite circles that reward conviction in defense of a political position.

      1. But in this case “gifts” have precisely nothing to do with the claim that Trump is violating the emoluments clause. He’s not getting gifts, he’s just engaging in commerce, like he did before he was President, and like multiple Presidents did before him.

        1. he’s just engaging in commerce,

          Oh bullshit, Brett.

          He tried to use his office to enrich himself. That’s a lot different than buying some land at public auction, or growing tobacco.

          Is there really nothing Trump could do that you wouldn’t defend?

          1. but orange man great

          2. I actually think the growing tobacco example is apt. Lets say a person is a farmer and they have a branded tobacco product, or a branded wine (vineyards are very hip among the rich and powerful). If my vineyard sells good wine that is popular in DC and I gain elected office, what is the level of divestment constitutionally required?

            1. Blind Trust.
            2. Banned from doing business with the government (including cancelling prior contracts).
            3. No self dealing at the levels of other bribery statutes.
            4. Free for all.

            I personally think the answer is probably #3. If my vineyard has been selling wine to the FBI for their social events, or is a competitive option, I think I should be able to make those sales.

        2. “he’s just engaging in commerce, like he did before he was President”

          Before he was President, he wasn’t using the power of the Presidential office to steer business to his array of businesses.

  9. Washington, Jefferson, Madison, Jackson at least owned working farms [plantations in fancy lingo] while president. They weren’t raising tobacco to smoke but to sell. Was every sale an emolument?

    And since everyone knew Washington was going to be president, do you think that the Framers put those clauses in to get him?

    Trump in his blunt way is 100% correct.

    1. While it is true the early Presidents did other work, that has not been the case for the modern Presidency. There is now an expectation that the President separate himself from his business during his term of office. This is in part because the entanglement today are so much greater. We don’t really know that Washington’s or Jefferson’s farm products were treated differently that their neighbor’s products. Jefferson is an interesting case in that he did sell his library to the government to start the Library of Congress and we know that the profits was used to cover his substantial debts. However I don’t think we would be comfortable with this today.

      1. The language in the Constitution did not change despite our new “expectation” in the “modern Presidency”.

        1. While the constitution did not change there is a long standing opposition to conflicts of interest by those in elected position. As I mentioned the need for the modern President to set aside his business interests is rooted in the number of entanglements that might incur. It is difficult to imagine a profession the President could practice where no conflicts of interest might arise. While we would likely have no problem with President Truman operating a men clothing store while President. We might be concerned if his line of men’s suits where made over seas in a country that just got a favorable trade deal.

          1. You can stop with “While the constitution did not change”.

            We are talking about the 1789 meaning of a term the document, not what a writer of that term in 2019 would think. The Framers could not see 225 years into the future.

            1. Which is exactly why originalism as practiced by people like you is so ridiculous.

            2. ” The Framers could not see 225 years into the future.”

              No, but pretty much everyone born 225 years after the Founders can.

        2. Modern technology and practices have changed the way we do business. An originalist can still hew to their interpretation of the Constitution and understand that modern circumstances change the impact of the original meaning.

          1. We have a procedure called Amendments to change the meaning or effect of the Constitution.

            1. Yes, we do.

              So, if things change but the Constitution doesn’t, should the actions of actual people conform to their present reality, or to the fiction that the Founders were inerrant?

              1. Nobody has to claim that the Founders were inerrant. In fact, they obviously made plenty of mistakes.

                Mistakes which were duly enacted into law, or ratified into the Constitution, and remain there in legal force until repealed.

                “I think this was a mistake.” does not repeal a law or constitutional clause, James. You have to actually go through the process of holding the vote and winning it.

      2. I believe when Jefferson sold his library he was no longer President.

        1. That’s correct, he was out of office and quite broke at the time. Well, he was always rich in land and slaves, but poor in liquid cash.

          1. Thanks for the clarification on this matter. Better it happened after he left office.

      3. On the other hand, Mod, you have the problem that Trump’s name is on the building. He’s not like Cheney, who could put all his wealth in a trust and just not look at it. While Trump is not actively running the corporation with his name on it, it still bears his name.

        The standards that you are putting on him essentially would ban a business owner from holding public office. This would also be both retroactive and unwritten, violating two cardinal rules of law (that it must be known and can only be enforced on actions after the law was written).

        So long as Trump isn’t actively trying to steer government contracts towards his own businesses (which I don’t think he’s stupid enough to try), I cannot see any violation of corruption laws.

      4. “While it is true the early Presidents did other work, that has not been the case for the modern Presidency. There is now an expectation that the President separate himself from his business during his term of office. This is in part because the entanglement today are so much greater.”

        This is 100% untrue. Back in the day the majority of wealth politicians had was in easily recognizable assets such as farms or Franklin’s printing press empire (which actually had many government contracts). Nowadays, most politicians have wealth as a result of their fame through books, inheritance, or salary which can easily be put in blind trusts (which I haven’t found evidence they even existed that far back). Trump represents a sort of reversion to the olden days when a person’s businesses are too intertwined with that person for them to be liquidated in a timely fashion.

        But the same would be true for a President Bloomberg (Bloomberg LP, which actually has gov contracts), Gates (Microsoft), or Pelosi (various real estate holdings and a vineyard).

    2. working farms [plantations in fancy lingo]

      Or maybe “forced labor camps.”

      1. Congrats, you get the woke award today.

        1. Do you think the characterization is inaccurate?

    3. Was every sale an emolument?

      Did they order the US government to buy from them?

    4. If Trump actively interferes with the selection process to direct to his business, then yes. However, I’ve seen no indication that he did so (I’m basing this on the concept that if there was direct proof, it would have been shouted from the heavens by now).

      People staying at his hotels to get on his good side cannot be considered corruption. An independent committee choosing his hotel cannot be considered corruption (though I think it would be wise to not even have considered them for appearance’s sake). It would only be corruption if Trump influenced the decision deliberately.

      1. If Trump actively interferes with the selection process to direct to his business, then yes. However, I’ve seen no indication that he did so

        Ben, meet Thomas Bayes.

      2. (I’m basing this on the concept that if there was direct proof, it would have been shouted from the heavens by now)

        I feel obliged to note that absence of evidence that X does not itself constitute evidence of not-X.

        Trumpers are getting a lot of mileage out of this whole rhetorical strategy: “I haven’t seen [evidence clearing some arbitrarily high hurdle] that Trump did something wrong, therefore he didn’t!” We hear a lot about “hearsay” and “secondhand accounts” as though we don’t base a lot of our everyday beliefs on exactly that kind of evidence.

        Setting aside whether any of that is defensible per se (it’s not), the strange and sudden perspicacity about methods and evidence is revealing in its own right, because it indicates a deeper recognition that Trumpers do see what’s wrong, do believe he’s capable of exactly the kind of wrongdoing he’s being accused of, do essentially believe that he’s done it. They just hang on this thin reed of an argument that they don’t know it, because they’re not prepared to admit openly that they approve of his corruption.

    5. Was every sale an emolument?

      Even if it was, emoluments aren’t banned — only ones from foreign or domestic governments.

  10. I am glad that Trump it backing off of holding the G7 at his facility. It seems like such a stupid hill to fight on. Moreover, even if he puts it on at cost, the amount of free advertising that he would get is nuts.

    1. I think Trump pulling back on the Doral decision was in the books and that he announced the Doral selection mainly to make news and deflect from other bad news. I am wondering if he thought he could keep Doral the topic for a week or so. He did have to pull this one back very fast.

  11. Nowhere in the Constitution does it say that a President must be a poor man. In fact they were EXPECTED to have a career OUTSIDE of “service.” I use quotations because I believe the definition of “service” has conveniently changed. Political office was NEVER meant to be a career – PERIOD. Representatives and Senators were NEVER meant to live in DC and in fact didn’t used to. They’re SUPPOSED to live IN the districts they represent. That’s HOW the people are able to make an informed decision about WHO to send to DC to BEST represent THEIR beliefs, wants, and needs. The same is true of the President (who btw was never MEANT to be a ruler who made laws via exe. order, which happens ALL THE TIME anymore). These political entities were supposed to carry on their normal business dealings or careers as usual while tending to the nations business as needed.

    Of course this “global” business has changed things quite a bit however I don’t think it’s unreasonable to hold these people to the expectations of the Founding principals. Representatives SHOULD still be made to live among their constituents (or they should NEVER be reelected) and I think EVERYONE would agree that making laws, policies, regulations, whatever in order to personally enrich oneself is amoral – who cares about whether it’s “legal?” Shouldn’t we be trying to be a moral people above all else? I should think that one would make the other unnecessary. If one carried on as a moral human being there would be no need for a law. For God’s sake, this isn’t rocket science and one of the Founding Fathers said it best when he said that our form of government was meant for a Christian citizenry and is wholly incompatible with any other. He didn’t MEAN literally a Protestant or Catholic or whatever type of Christian – he MEANT a MORAL citizenry. If you look at our laws you can see that he’s right, if you’re an amoral person our government leaves all sorts of opportunities for corruption and wrong doing. The difference is today our people take advantage of those opportunities whereas the Founders and many who followed did NOT. They did what was RIGHT – not what was easy or what was best for THEM personally.

    I guess what I’m saying is that who cares whether it’s legal or not? The President is SUPPOSED to have a career outside of being President. However said President should NEVER use the office in order to enrich himself or his friends or family. If we as a citizenry would implement some standards again and HOLD our leadership to those standards which WE live by – it would solve a whole lot of these issues. Government is but a reflection of the society at large. I think that says it all right there.

  12. “I hope to have more to say about this topic with Professor Tillman later this week.”

    I hope this includes a rational reason as to why the constitutional framers and ratifiers would’ve been concerned about corruption and foreign influence in the new federal government, but not as it pertains to the President himself.

    1. Right.

      I mean, an ambassador getting a gift is a dangerous thing, but it’s OK if the President gets one.

      I’m sure that’s what Madison thought.

  13. There’s just one problem with the President’s logic… it’s a non-sequitur.
    He says Washington did the same thing he does (a bit of a stretch) but accepting that as true for the purposes of argument). How does claiming Washington was also guilty establish that Trump is innocent? It doesn’t.

    Besides, Washington had some things working in his favor. Washington led the troops in the multi-year fight for independence. The Congress cut him some slack for that. Trump not only didn’t lead us to independence, he didn’t even serve in the military in any capacity. Washington was also the first to serve as President. The nature (and limits) of the job were still being worked out at the time, and the new nation’s brand-new government had a lot of other things to worry about besides whether their hero-of-the-nation new President was completely within the rules for the new job he had taken on.

    1. Additionally, the two-score men who’ve occupied the office have, save for one, intentionally steered clear of the line, wanting to avoid even a hint of possibility of being corrupt in this manner, so we still don’t have a firm idea of where, exactly , the line is between permissible and impermissible action. The exception being, of course, Mr. Trump himself. In the future, when schoolchildren learn, in history class, of the great scandals that have afflicted Presidential achievements, will Trump be mentioned alongside other great scandals such as Teapot Dome? (Of course, the Trump scandals will be named for Mr. Trump rather than go by any other name. The man wouldn’t want it any other way.)

    2. There’s just one problem with the President’s logic… it’s a non-sequitur.
      He says Washington did the same thing he does (a bit of a stretch) but accepting that as true for the purposes of argument). How does claiming Washington was also guilty establish that Trump is innocent? It doesn’t.

      That’s not the logic at all. (Well, Trump doesn’t have any logic, but it’s not the logic of the people who came up with this argument.) The logic is that we’re not sure whether the EC should be interpreted to outlaw X. George Washington did X. That means it’s unlikely that X was what they were trying to ban.

      (Explaining, not endorsing.)

  14. I apologize for not having time to read all the links provided, but is there something in there somewhere about George Washington ordering the Continental Army to winter at Mount Vernon at the government’s expense?

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