Some misgivings about the Foreign Emoluments Clause arguments
I keep getting asked questions about whether Donald Trump's foreign business dealings will run afoul of the Foreign Emoluments Clause, which says:
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.
I ultimately do not have a firm view on this question, which means I have not been wholly convinced by the very firm views I have seen bandied about on both sides. But here are a few thoughts:
1. I'm still not convinced that the president holds an "Office … under [the United States.]" As I explained in an essay this summer, Seth Barrett Tillman's scholarship on this question (once I really understood it) has influenced me. Tillman argues that an "Office … under [the United States]" is one created, regularized or defeasible by federal statute and therefore does not include constitutionally elected positions such as the presidency. I think Tillman's work has shifted the burden of proof on this question to those who think otherwise.
There have been some attempts to show otherwise. The much-cited Eisen/Painter/Tribe report contains a few things on this issue, but doesn't do the question justice. A more direct engagement comes from Mark Joseph Stern at Slate, and here is Michael Stern at Point of Order as well (no relation that I know of).
I do think that there are some good arguments that the president is covered, but on balance one major point on Tillman's side remains unanswered: Tillman has a nearly comprehensive theory of how all of the different office-related phrases in the Constitution make sense together—as a matter of text, structure and history. For instance, the president and vice president have never received commissions for their offices, even though Article II requires the president to "Commission all the Officers of the United States." If you do not have an explanation for that, I am not sure how confident you should be in your view of the Foreign Emoluments Clause.
So I do not think Tillman's scholarship on this point is fully answered by arguments that focus on the supposed purpose or claims about the Foreign Emoluments Clause alone. There was a time when it was conservatives who were criticized for an overly "clause-bound" method of interpretation. But much of the writing on Trump and the Foreign Emoluments Clause seems to make the same mistake.
To be sure, it is possible that the Constitution's different phraseology is just an accident or doesn't make sense. But the fact that Tillman's work does make sense of it is a strong point in his favor. And it is a reason I would really love to read a competing account of the meaning of all of these phrases from somebody who disagrees.
2. It is sometimes asserted that modern practice uniformly favors extending the Foreign Emoluments Clause to the president, but I am not so sure. Here is Andy Grewal:
Various commentators point to a 2009 OLC opinion examining whether President Obama could lawfully receive the Nobel Peace Prize award and conclude that the Emoluments Clause will apply to an elected official, like Donald Trump, when he takes office. However, when one reviews the several dozen OLC opinions that mention or discuss the Emoluments Clause, a much blurrier picture emerges. The OLC has not broadly applied the Emolument Clause to elected officials. Rather, it frequently reads the Emoluments Clause consistently with the Appointments Clause.
3. That said, there are other emoluments clauses. Until last year, the most-studied emoluments clause was the one that forbids members of Congress from being appointed to an office "the Emoluments whereof shall have been increased during" their terms. (The most famous such study is Michael Stokes Paulsen, "Is Lloyd Bentsen Unconstitutional?", 46 Stanford L. Rev. 907 (1994), though I am just finishing my own effort.)
But Briane Gorod recently reminded us that the Constitution contains a third emoluments clause, which I call the Presidential Emoluments Clause:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
This Clause unquestionably applies to the president, and might raise problems for various business transactions and tax benefits that the Trump empire receives. But then we have to figure out what an "emolument" is, and this turns out to be very complicated. (Here is Mike Rappaport on a range of historical definitions, here is a discussion of Ronald Reagan's California pension, here is a discussion of President Obama's treasury bonds—and we're just getting started.)
4. Maybe we should not be so focused on the emoluments clauses. There are many very valid worries about conflicts of interest and the blending of politics and personal business under the Trump presidency. These are in part questions of convention, tradition, good government and so on. But I worry that they are not getting full consideration because of all this fencing about "emoluments."
Even if you are satisfied that Trump is likely to violate one of the emoluments clauses, the arguments are technical, and the answers are not completely obvious. To argue against Trump's behavior on those grounds is, I fear, to get sucked into a trap where the arguments are unlikely to resonate or accomplish their aims. (I think we have seen this in many other areas of over-constitutionalized law as well.)
The more urgent and more serious question is how the American people do and should feel about the president's business interests. The emoluments clauses are not the most relevant thing to that inquiry, and maybe not the best way to frame it.