The Volokh Conspiracy
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Judge Barrett is asked about the Emoluments Clause litigation
Remember Emoluments?
After nearly four years, the Emoluments Clauses litigation has finally made its way to the Supreme Court. Jon Adler noted that certiorari was denied in Blumenthal v. Trump. In this case, Senator Blumenthal and other members of Congress alleged that President Trump violated the Foreign Emoluments Clause. There are still two other pending cases before the Court: Trump v. CREW and Trump v. Maryland & D.C. I will blog about both cases in due course.
In this post, I'd like to highlight several exchanges during Judge Barrett's hearing that touched on the Emoluments Clauses.
The most extended discourse on the Emoluments Clauses came in a colloquy with Senator Leahy. (Again, I think he is one of the most effective Democratic questioners.) This colloquy begins at 15:36:
SEN. LEAHY: You're an originalist. Can you explain why the Framers included the Foreign and Domestic Emoluments Clause[s] in the constitution?
JUDGE BARRETT: I think I could speak generally to what is the well-accepted view that the Foreign Emoluments clause, it's plain from the text that it's designed to prevent foreign influence in government affairs.
SEN. LEAHY: It's part of the anti-corruption clause of the Constitution. Isn't it?
JUDGE BARRETT: Could you repeat the question?
SEN. LEAHY: It's sort of like you would say, it's the anti-corruption clause in the Constitution?
JUDGE BARRETT: I don't know if I would characterize it as an anti-corruption clause. I would characterize it as I did which one from its very text you can see is designed to prevent foreign countries from having influence.
SEN. LEAHY: I was thinking about the constitutional convention, Governor Edmund Randolph said the clause was thought proper in order to exclude corruption and foreign influence, prohibit anyone in office from receiving or holding any emoluments from foreign states. Now we find that 200 companies and foreign governments have patronized Trump properties at the same time they're getting benefits from him and the administration. First two years of his presidency, $73 million for his properties abroad. An originalist, as you are, do you think the companies of foreign governments would have fallen within the framer's zone of concern in writing the Emoluments Clause?
JUDGE BARRETT: Senator, the Emoluments Clause, it's under litigation. There was a Fourth Circuit case that recently involved this question, so as a matter that is being litigated, it's clear that's one I couldn't express an opinion on because it could come before me.
Senator Booker also asked a question about the Emoluments Clause.
SEN. BOOKER: If the president is personally responsible for several hundred million dollars of debt while he is in office, potentially to foreign entities, do you think he has a responsibility to disclose who his lenders are, especially given the emoluments clause?
JUDGE BARRETT: Senator, there's litigation about the emoluments clause, I don't know where it stands, but that clearly is an issue being litigated and one present in court is not one on which i can offer an opinion.
And Senator Hawley asked a "hypothetical" about Hunter and Joe Biden:
Senator Hawley: Senator Leahy asked you about the Foreign Emoluments Clause, which is in Article one, Section nine, Paragraph eight. Yes whether it was characterized as an anticorruption clause. He asked whether it was characterized as anticorruption clause, with foreign interference. Then he referenced the President and various allegations about foreign influence. Since he asked you about foreign influence in government, I think it's only fair that I ask whether, hypothetically speaking, just hypothetically, if there were a vice president of the U.S. who hypothetically had an adult son who hypothetically worked for a foreign oligarch who then sold access to his father, the Vice President, then his father intervened in a case and to make sure that oligarch was not prosecuted, hypothetically, would that violate—would that constitute the kind of foreign corruption that the Constitution is concerned about?
JUDGE BARRETT: I cannot answer hypotheticals.
Finally, Senator Blumenthal, the lead Plaintiff in Blumenthal v. Trump, asked about his case–now cert. denied. The exchange begins at 13:20.
SEN. BLUMENTHAL: I want to ask you about a fact that is critical constitutionally. During his first two years in office the Preisdent received $73 million from foreign sources. In the interest of full disclosure, I want to say I led a lawsuit involving 200 of my colleagues challenging the President's receipt of those foreign benefits and foreign payments as a violation of the Emoluments Clause. We cited as well other payments and benefits that he received from India, Afghanistan, Kuwait, Qatar, Malaysia, Saudi Arabia, Slovakia, Thailand, and more in violation of the Emoluments Clause. We have been talking a lot about originalism. The Emoluments Clause was the premier anticorruption clause in the United States Constitution. As Edmund Randolph of Virginia said, the clause was intended to "prevent corruption" by "prohibiting anyone in office from receiving or holding any emoluments from foreign states." The lawsuit that I led was denied certiorari yesterday by the United States Supreme Court. The D.C. Circuit Court of Appeals ruled against us on the limited technical issue of standing. It did not deal with the merits. I hope that you will keep in mind the danger of corruption and the need to give citizens standing to enforce laws that prohibit corruption. Nobody is above the law. You have stated that position very well and enforcement of laws that prevent corruption is vital. My view is that the president, any president, must be held accountable. Do you agree?
JUDGE BARRETT: No man is above the law. I agree with that as I have stated very clearly before and I also want to assure you, Senator Blumenthal, I will apply all laws and come to an open mind with all laws including laws dealing with anticorruption.