The Volokh Conspiracy
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President-Elect Trump's New White Paper on Conflicts of Interest
In January 2017, President-Elect Trump held a press conference and released a conflict of interest policy. In what feels like a lifetime ago, many people learned for the first time about the Emoluments Clause. The paper, produced by Morgan Lewis, offered this analysis:
From President Washington to Vice President Rockefeller to President-Elect Trump, many of this Nation's leaders have been extraordinarily successful businessmen. Neither the Constitution nor federal law prohibits the President or Vice President from owning or operating businesses independent of their official duties, as a careful textual and historical analysis shows. Generally speaking, federal conflict-of-interest laws prohibit "officers" or "employees" of the United States from taking positions against the country's interests, maintaining outside employment, receiving an outside salary for official duties, or taking official acts that affect their personal financial interests.2 But these laws have historically not applied to the President or Vice President. As then-Assistant Attorney General Antonin Scalia observed in an Office of Legal Counsel memorandum, the term "officer" typically includes neither the President nor Vice President.3 And since 1989, Congress has approved this tradition by expressly excluding the President and Vice President—along with Members of Congress and federal judges—from most conflict-of-interest laws.4 The Office of Government Ethics has recently re-affirmed that these conflict-of-interest laws do not apply to the President.5 Though Congress has long exempted the President and Vice President from federal conflict-of-interest laws, consistent with a tradition extending back to the Founding, many of these public servants have nevertheless sought to provide extra assurances that their undivided commitment is to the good of the country. For example, Presidents Johnson and Carter voluntarily stepped away from their broadcasting stations and peanut farms.6
1 Authored by: Sheri Dillon, Fred F. Fielding, Allyson N. Ho, Michael E. Kenneally, William F. Nelson, and Judd Stone.
2 See generally 18 U.S.C. §§ 203, 205, 207-09.
3 Memorandum from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, to Kenneth A. Lazarus, Associate Counsel to the President, Applicability of 3 C.F.R. Part 100 to the President and Vice President (Dec. 1974).
4 18 U.S.C. § 202(c) (stating that, unless otherwise provided, "officer" and "employee" do not include President or Vice President).
5 Letter from Walter M. Shaub, Jr., Director, Office of Government Ethics, to Senator Thomas R. Carper, at 2 (Dec. 12, 2016) ("[T]he primary criminal conflicts of interest statute, 18 U.S.C. § 208, is inapplicable to the President[.]").
6 See Megan J. Ballard, The Shortsightedness of Blind Trusts, 56 KAN. L. REV. 43, 54-56 (2007).
As I recall, Seth Barrett Tillman was the first person to raise the Scalia opinion in late December 2016. I've also subsequently researched the Johnson and Carter business interests; the facts are not so clear.
Today, amidst everything else going on, as evidence of the President Elect's "responsibilities," Trump has issued a new white paper. The analysis is a bit more in depth.
First, the memo repeats that federal statutory restrictions ought not to apply to the President:
While federal conflict-of-interest laws expressly prohibit "officers" or " employees" of the United States government from taking positions against the country's interests,² the terms "officer" and "employee" in these statutes expressly exclude the President of the United States (along with the Vice President, Members of Congress and Federal judges).³
This analysis also extends to officer-language in the Constitution.
Second, the memo offers the narrow definition of "emolument," citing the corpus linguistics analysis published by James Phillips and Sarah White in the South Texas Law Review:
Similarly, although the Emoluments Clauses prevent federal officers from accepting gifts or other "emolument" from foreign, federal or state governments or government officials,4 the Emoluments Clauses do not prohibit ordinary and customary private business transactions untethered to the President's official duties such as the payment of ordinary fees for a hotel room, or a round of golf at market prices, or a market fee for services or other business interests.5
5 See Morgan, Lewis, and Blockius LLP, White Paper: Conflicts ofInterest and the President (Jan 11, 2017); see also, e.g., Hoyt v. United States, 51 U.S. 109, 135 (1850) (describing an emolument as "every species of compensation or pecuniary profit derived from a discharge of the duties of the office"); see also James C. Phillips & Sara White, The Meaning of the Three Emoluments Clauses in the U.S. Constitution : A Corpus Linguistic Analysis ofAmerican English from 1760-1799, 59 S. Tex. L. Rev. 181 at 223-30 (2017); Barclay's A Complete and Universal English Dictionary on a New Plan (1774) (defining the term "emolument" to mean "profit arising from an office or employ") ; Oxford UniversityPress, Emolument, OED Online (Dec. 2016) (defining "emolument" as a "[p] rofit or gain arising from station, office, or employment; dues; reward, remuneration, salary") ; Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) ("We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion.") ; but see In re Trump, 958 F.3d at 286-287 ("Respondents assert that emoluments include ' all profits and other benefits [accepted from a foreign or domestic government] that [ the President] accepts through the businesses he owns.' Respondents point us to several Executive Branch and Comptroller General legal opinions that have arguably interpreted the term consistently with their definition, not the President's. And multiple amici have submitted briefs in this and the companion case, No. 18-2488, urging still different understandings of the term emolument. Finally, within the Executive Branch, officials have acknowledged there is considerable debate about this issue ." ) ( internal citations omitted).
Third, the memorandum looks to past practices of Presidents:
Indeed, there are multiple examples of former Presidents and other high ranking government officials who continued private business ventures while in office.6
6 Examples of former Presidents and government officials who have maintain businesses while in office include George Washington whose private business exported flour and cornmeal to foreign countries (Ten Facts about the Gristmill, George Washington's Mount Vernon, Fact 9, http://www.mountvernon.org/the-estate-gardens/gristmill/ten-facts-aboutthe-gristmill (last visited September 29, 2017; National Register of Historic Places Registration Form, George Washington's Gristmill, 8, at 9 (2003), Thomas Jefferson who maintained his farm and nail factory and exported his tobacco crop to Great Britain (Letter from Thomas Jefferson to William A. Burwell (Nov. 22, 1808), in 11 The Works of Thomas Jefferson 75-76 (Paul Leicester Ford ed., 1905)) and, more recently, former Vice President Nelson Rockefeller who continued to hold stock during his term in office in Standard Oil (founded by his which did business worldwide, including, with foreign governments and former Secretary of Commerce Penny Pritzker who continued to retain considerable holding in her family's business, Hyatt Hotels.
There will be more Emoluments Clause litigation. The Lawfare will resume just where it left off.
