Is the Emoluments Clause a problem for Hillary Clinton?

You may not have heard of the Emoluments Clause, but some people think it raises a problem for Hillary Clinton. The clause, contained in Article I, section 9, reads as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The issue is whether the Clinton Foundation's acceptance of gifts from foreign governments while Hillary Clinton served as secretary as state violated this provision (assuming, of course, that gifts to the Foundation were, in some sense, also gifts to her). Additionally, it would seem, there would also be a question as to whether the Clinton Foundation could accept such gifts if Hillary Clinton is elected president.

For what it's worth, I don't think this question is justiciable. That is, I do not believe that someone could go to court to seek to disqualify or sanction Clinton. The issue might, however, be of interest to some voters (and by "some" I mean some percentage of lawyers, professors and pedants who have actually thought about the Emoluments Clause and its significance). One could conclude that Clinton violated the spirit of the clause even if one does not believe courts can (or should) do anything about it. (And one could also reach this conclusion and still believe that such an ethical lapse is still minor compared with the offenses committed by Donald Trump.)

The meaning and current application of the Emoluments Clause might not seem like much of an issue to you, but it is to two of my colleagues, Jonathan Entin and Erik Jensen. The two have dueling op-eds on the clause in the Cleveland Plain Dealer.

Here's Jensen:

you can't take politics out of politics—but payments from foreign governments to federal officials are different from the usual sorts of contributions. Those who are supposed to be looking out for the best interests of the United States shouldn't be taking goodies from other governments, a potentially corrupting influence that creates the appearance of divided loyalties.

America's founders understood this. In the Foreign Emoluments Clause of the Constitution, adapted from a similar provision in the Articles of Confederation, the founders provided that "no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept of [sic] any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

A present—or, even worse, compensation for services (an emolument)—transferred by a foreign government to a federal official isn't everyday pay for play; it's forbidden, unless Congress approves. . . .

What about gifts from foreign governments made to a foundation in which a person holding an office of trust—a secretary of state, say—has a controlling position, either directly or through family members? That sort of thing happened not so long ago. Whether or not the practice could have survived review by lawyers in green eyeshades, I'm not sure. But the practice smelled; it violated the spirit, if not the language, of the Foreign Emoluments Clause and related statutes. It was, at a minimum, an ethical lapse.

Here's Entin:

If you haven't heard that Hillary Clinton is constitutionally ineligible to be president, be ready.

That claim has nothing to do with her birth certificate but rather with contributions to the Clinton Foundation by foreign governments.

According to conservative bloggers, those contributions violate the Emoluments Clause of the Constitution (Article I, Section 9), which generally forbids American officials from accepting "any present, Emolument, Office, or Title" from another nation. Because the foundation accepted payments from foreign governments while she held government positions, Clinton supposedly violated the Emoluments Clause and is disqualified from serving as our chief executive.

This is a dubious argument.

If, after reading these op-eds, you want still more on the Emoluments Clause, the National Constitution Center has posted additional background and an exchange between Professors Seth Tillman and Zephyr Teachout as part of the Center's Interactive Constitution.