Press Coverage on the Emolument Clauses Litigation

|

On Monday, the Supreme Court effectively ended the Emoluments Clauses litigation.  Howard Bashman rounded up more than a dozen media accounts. I'd like to commend Adam Liptak's report for the New York Times. His account stands out, because he did not accept the Plaintiffs interpretation of the Foreign Emoluments Clauses as fact. Adam wrote:

The move means that there will be no definitive Supreme Court ruling on the meaning of the two provisions of the Constitution concerning emoluments, a term that means compensation for labor or services. One provision, the domestic emoluments clause, bars the president from receiving "any other emolument" from the federal government or the states beyond his official compensation.

The other provision, the foreign emoluments clause, bars anyone holding a federal "office of profit or trust" from accepting "any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state" without the consent of Congress.

First, Adam did not define an"emolument" as anything of value, or something to that effect. He used a far more neutral definition: "compensation for labor or services." Second, Adam did not state, as a matter of fact, that the Foreign Emoluments Clause applies to the President. Instead, he quoted the language used in the Constitution.

Way back in September 2017, Adam wrote about the briefs Seth Barrett Tillman and I filed in the CREW litigation. Even then, he understood the nuance of our position. And to this day, Adam stated the position accurately for the Times.

Other accounts, however, simply stated as fact that the phrase "emoluments" refers to a much broader range of payments. And most accounts simply assumed that the Foreign Emoluments Clause applies to the President.

Now that the Supreme Court has denied review, we likely will not get any definitive judicial resolution of this issue. I've pasted the other press clippings below the jump.

Washington Post:

It means there is no definitive answer after years of legal wrangling over the Constitution's emoluments clauses, which prohibit presidents and others from accepting gifts or payments from foreign governments without congressional approval.

Wall Street Journal:

The justices in brief written orders wiped out a pair of cases alleging Mr. Trump was violating the Constitution's emoluments clauses, which prohibit the president from receiving things of value from foreign and state governments.

USA Today:

Aiming to limit the potential for outside influence on the president, the Constitution's Framers included language asserting that "no person holding any office of profit or trust under [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." A second constitutional provision specifically prohibits the president from receiving domestic emoluments.

Reuters:

The action means that after four years of litigation the top U.S. judicial body will not rule on the meaning and scope of the Constitution's so-called emoluments provisions, a largely untested area of constitutional law. The provisions bar presidents from accepting gifts or payments from foreign and state governments without congressional approval.

NBC News:

Both lawsuits involved the Constitution's emoluments clauses, which forbid the president from receiving "any present, emolument, office or title of any kind whatever from any king, prince, or foreign state" or any state in the U.S.

Politico:

The outcome in the cases also signals how ineffective the courts proved to be in policing Trump's alleged violations of the emoluments clauses, which prohibit any president from receiving funds related to their official duties from any foreign or state government.

Courthouse News Service:

At the heart of the cases is the so-called emoluments clause, which bars presidents from receiving gifts from foreign or state governments while in office without congressional consent.

 

 

NEXT: The Still-Untold Story of Electric Grid Insecurity

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Lawfare like this should be criminalized. The lawyer should get a penalty like that for perjury, and pay all costs from personal assets, not from the taxpayer. The same should go for nitpicking, and for charges arising out of paperwork violations by political opponents.

    Regular people in overflight country are sick of your scumbag lawyer profession. The tech billionaires funding these campaigns should live as Saddam Hussein lived, never in the same apartment 2 nights, cooking rice in his underwear.

  2. Why is Blackman so intent on keeping loopholes open to help foreigners bribe the President? It’s as if he built up so much Trump-fan momentum that it carried him right past inauguration day, and he still can’t get the brakes on.

    1. Want might more usefully ask why the Democrats thought the first “rich” President was so likely to be the first easily bribed President, why Bill and Hillary had not been bribed by the commodity traders, why Hillary had not been bribed while Secretary of State, etc.

      Why was not this “bribery” added to the impeachment particulars if it was so obvious?

      Your TDS is showing.

      1. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf : “… (gibberish) …. commodity traders … (gibberish)”

        Ah, the golden oldies! I just tried searching for an ancient James Glassman article in the New Republic that laid out the Clinton cattle trades in exhaustive detail, but was unable to find a copy. So by memory :

        Interested in investing, the Clintons were introduced to a commodity trader named Robert Bone thru a common fiend . At the time Bone was making mountains of money for all his clients and would continue to do so during & after the brief period he traded for the Clintons. Per Glassman, there was one possible ethical problem that might have separated them from Bone’s other lucky clientele : He might have cherry-picked profitable trades to hand over to Bill & Hillary. Per Glassman that definitely wasn’t the case. There was an unbroken string of trades for the Clintons with wide swings of loss & profit – the exact opposite profile of cherry-picking. That led to the one problem identified in the article : There were times after a trade swung against the Clintons when they should have faced a margin call, but didn’t.

        This might have been an ethical issue if reflected special favor, but the evidence is against that also. After the (unnerved) Clintons took a profit swing and fled, Bone would continue to make stupendous profits for his clients until receiving a three-year suspension from the Mercantile Exchange. The charge was – yes – “systematic violations of its margin trading rules”

        So, yeah, the statement above from Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf is raw ignorance.

        Arguably, the event is so old & ignorance from that source so common that it’s hardly worth correcting, but I opted to do so anyway.

        1. Yes, we know. “I’m a politician, but that is ‘t my real job. I will earn my many millions because I and my spouse are investment geniuses.

        2. Well the “common friend” was Jim Blair who was an attorney for Don Tyson, the chicken magnate, Bill was the attorney general of Arkansas at the time.

          Red Bone had been sanctioned in the past for “improper record keeping”, specially making trades and then waiting to assign them to accounts until after he knew whether it made money or lost money. You should be able to see how making offsetting put and call transactions in cattle futures you could transfer 100,000 from say one of Don Tyson’s accounts and Hillary’s cattle future account. I suppose it’s possible that Hillary was so naive that she didn’t know what was going on, but that doesn’t speak to highly of her either.

          More troubling and much more recent was the hundreds of thousands Bill got from Russia, and I believe the UAE, and the hundreds of millions the Clinton foundation got when Hillary was Secretary of State, and gearing up to her presidential run.

    2. It isn’t about “keeping loopholes open to help foreigners bribe the President”, any more than Buckley v. Valeo is about “keeping loopholes open to help big campaign contributors bribe politicians”.

      The problem of what constitutes a bribe is actually a fundamental one, because it’s fundamentally impossible to prevent any informal bribery in politics unless you just shut down the economy. So every bribery statute ever written draws lines and leaves untouched other conduct that could be used to peddle influence.

      The fact is the Emoluments Clauses are very vague and potentially extremely broad. There’s nothing dishonorable about looking for a limiting construction of something like that, especially when there’s so little caselaw on the issue. This is Law 101, and Chapter 1580 in “Stephen Lathrop needs to take an introduction to jurisprudence course in law school where he can find out he doesn’t know as much about this subject as he thinks he does”.

    3. Let me begin with a little throat-clearing to make sure I alienate as many people as possible:

      I think Trump’s handling of his financial interests during his term was, at best, a display of remarkably poor judgment (from Trump? Shocking, I know) and created a serious appearance of impropriety. I also think the emoluments suits against him were completely meritless, bordering on the frivolous.

      But none of that has much to do with Prof. Blackman. Rather, he sees the cases as an opportunity to flog his heterodox theories about the meaning of Article II and get a career boost from the attention it might bring. (Some commenters think he was also fishing for an appointment from the Trump administration, but I have to believe that even someone as hubristically clueless as Prof. Blackman has to understand that he isn’t cut out for a real job.)

  3. By the usual canons of construction, an Emolument is akin to a present or title, i.e. something for nothing. In that case, renting rooms or selling meals at market prices could not be an Emolument, because it would be a fair exchange.
    In the alternative, if payment for any ordinary business transaction was an Emolument, then President Obama violated the domestic emoluments clause each time a state university or municipal library bought one of his books.

  4. But, while we’re on the subject of the foreign emoluments clause, what if the office holder is the Vice President, not the President, and the foreign party is not a king or prince, but a government minister whose party just went out of power?
    To further complicate things, the cash did not go directly into the VPs pocket but his son’s, an attorney whose value as an advisor was put into question by his recent discharge from the US Navy for drug use.
    Emoluments Clause violation?

    1. And the signal-to-noise ratio continues to decline.

      1. I thought the analysis by Alphonse was correct. The lawsuit was just harassment of a political opponent. That should be punished with jail time and costs assessed to the assets of the plaintiff.

      2. And the signal-to-noise ratio continues to decline.

        With every post you make.

  5. It’s almost as though your argument didn’t carry the day in the court of public opinion.

    1. But that’s consistent with Prof. Blackman’s argument! One reason to adopt a narrow construction of these constitutional provisions with respect to the President is the public (and perhaps Congress in the impeachment process) can very well enforce these provisions on their own.

      The political question doctrine does not get enough love. Not everything in the Constitution needs to be enforced by the courts. Courts are good at some stuff (issuing injunctions so you can carry on your First Amendment activity, excluding evidence produced by illegal searches) and bad at other stuff (conducting foreign policy). If Congress wanted to pass a law enforcing the emoluments clauses with specific rules that the President must follow, that could be a different issue, but the basic issue of “is this politician too close to foreign interests?” is a political question far more than it is a legal one.

      1. You seem to be saying the emoluments clauses are in the nature of licenses to Congress to legislate on these matters, and that until that happens they don’t really have any effect.

        But Blackman seems to argue that the clauses don’t even apply to the President.

        1. I don’t think the emoluments clauses are licenses to Congress, but I do think that Congress can regulate the President’s taking bribes under its other Article I powers and in that sense can limit the President’s ability to accept emoluments.

          I share Blackman’s view that the clauses are not enforceable in litigation against the President, but my view would be because that’s a political question. Put another way, I think the voters have every right to elect or re-elect a President who blatantly violates the emoluments clauses, and the courts should not overturn the will of the voters if that happens.

          1. I think the voters have every right to elect or re-elect a President who blatantly violates the emoluments clauses, and the courts should not overturn the will of the voters if that happens.

            But you can’t violate the clauses, as President, if you are not actually President, so the voters get at most one chance to take their voice heard on this issue. By your logic any second-term President could violate them at will.

            Could Congress pass a law specifying what outside sources of income the President is allowed? That seems far-fetched.

            We already have bribery statutes, but since DOJ can’t/won’t indict a sitting President they are potentially useful only when he is out of office, and then we run into a lot of other political issues.

            1. There’s always impeachment and conviction. Sort of a “recall by proxy” since there are no provisions for voters to recall a President (unlike, say, a governor in California).

            2. 1. Congress can impeach.

              2. The voters can vote the President out of office or even punish the POTUS’ party in the midterms.

              3. Congress can allow a civil suit against the President, although it would have to be conducted within the limits of Clinton v. Jones, granting standing to someone injured by acceptance of an emolument.

              4. Presidents can be indicted after they leave office, if Congress criminalizes it.

        2. Bernard, if the Foreign Emoluments clause applies to the President why is their a separate Presidential Emoluments clause? And why did Washington and the first congress conduct themselves as if the Foreign Emoluments clause did not apply to the President?

          1. Kazinski,

            The Presidential emoluments clause:

            “The President shall, at stated Times, receive for his Services, a Compensation which shall neither be encreased 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 specifically addresses and limits the President’s paycheck – what he is entitled to be paid the federal and state governments. It has a very narrow scope, as opposed to the Foreign Emoluments clause. That seems like a distinction.

            I don’t think Washington’s behavior is dispositive.

            First, of course, just because it was tolerated at the time doesn’t make it OK. Did the framers never violate the Constitution?

            Second, he tried to keep a lot of his dealings secret. Wonder why?

            Third, I think it’s an interesting question whether transactions at market prices violate the clause. My understanding is that Washington’s deals were of that nature. Certainly buying land at a public auction is.

            What I ask is why the framers were so concerned about foreign influence that they barred all sorts of officials from receiving foreign emoluments, but somehow thought it was not necessary to include the President in the ban. I’d further ask why, if that was their intent, they chose such a complex and indirect way of saying so.

            Blackman’s pretzel semantics about the issue are unconvincing to me.

  6. If an emolument is in fact “compensation for labor or services,” then why isn’t renting a room at the President’s hotel, even at a market rate, an emolument?

    Isn’t that compensation for a service?

    1. Bernard,
      As I wrote yesterday, this is what we get for Congress not doing its job for two centuries. It’s time to fix that and make the law clear.

      1. There is no utility in dwelling on a past error, you need to figure out

        1) how to mitigate the current damage
        2) how to change existing procedures so this error is less likely in the future.

        And no, ‘do better’ is not a corrective action plan.

          1. Mitigate with clarifying resolution.

            Correction is a lot more of a challenge.

      2. Just make sure it applies to congress and congressional employees as well as the president and the executive branch.

    2. Or buying a Pepsi at the hotel bar.

    3. For the same reason you can no longer blame your issues on Eve. Too attenuated of a relationship between cause and effect.

      And I suppose you could also throw in the fact that in that scenario the President isn’t the one performing the labor or providing the services. (I’ll go way out on a limb and presume there’s an appropriate corporate entity — or more likely a set of them — in place to own and operate the hotel.)

    4. It is. In the same way that the government buying a few thousand copies of your book and giving you the royalties for it is.

      No?

      1. Actually, Captain Whatabout, buying a book is not “compensation for labor or services,” it’s the purchase of a good.

        And it doesn’t matter if the government is the buyer or you are.

        But I’m sure Obama would be willing to refund the $10K or so in royalties he got if Trump would refund all the money guests at his hotels and clubs spent, or even just what the Secret Service spent.

        1. The fact that one ultimately donates or refunds an emolument that they accepted is irrelevant. The ban is on accepting, not spending or consuming that emolument.

          If someone knowingly receives stolen goods from a thief, the fact that they ultimately donate or return those goods to the thief does not make the person any less guilty of receiving the stolen goods in the first place.

          1. Well, it depends on how “ultimate” it is, doesn’t it.

            If the recipient more or less immediately turns the money over to the government it’s hard to see anything wrong.

            Besides the whole book example is a typical A.L. red herring. Is the claim that the government is trying to influence the President’s behavior by providing a financial benefit?

            That’s as silly as saying the price you pay for a book is “compensation for labor or services.”

    5. Because Trump doesn’t receive that payment directly, and any single room rental at standard rates will have almost no impact on the income the he does receive from the hotel as the owner of the business.

  7. So now we’re whining about press coverage?!?

    1. Press coverage not including his legal opinion, which he appears to be treating as fact.

      The Brettaning of Blackman.

      1. S0,
        Give him a break. He is only from a tier 5 law school.

        1. Hah. Doesn’t mean he has to act like it though.

        2. When the time comes, the Deans of the Top Tier law schools are on the arrest list. They should be defunded, and shut down, by force if necessary, to save this nation. They indoctrinate intelligent students into supernatural doctrines. And, every self stated goal of every law subject is in utter failure. They are responsible for the failure of the lawyer profession, the most toxic occupation, far more damaging than organized crime.

        3. How many tiers are there?

          1. About twice as many as there should be.

            1. My impression is that there are four – 1,2,3, and 10.

  8. I’m also surprised to see how Politico put it.

  9. Even then, he understood the nuance of our position.

    Your position is that you’re a partisan hack who would defend Trump through anything he did. It’s not that nuanced or hard to understand.

  10. “compensation for labor or services” might be a more neutral description than the others, but it is still not an accurate one. An emolument is an ex gratia payment to an office-holder or title-bearer. They do not necessarily require labor or services for payment. It is a synonym of honorarium.
    Although the etymology is commonly expressed as representing a payment to a Miller to grind grain, it in fact represents the payment given to the political appointee who won the local milling license in the patronage spoils system, who was typically a Roman Senator or patrician who never even visited the mill.

  11. It’s a political question. That is to say, President or other office-holder that violates just the emoluments clauses – as opposed to some anti-bribery statute that criminalizes accepting emoluments – can only be sanctioned by impeachment, or censure.

Please to post comments