This article first appeared in the Daily Caller.
Now that President Trump has been cleared from charges that he colluded with Russia, it is time for the courts to exonerate him from another groundless charge: The courts should dismiss the lawsuits brought under the Constitution’s Foreign Emoluments Clause.
The Foreign Emoluments Clause bans the holder of an “Office of Profit or Trust under [the United States]” from accepting any “present, Emolument, Office, or Title” from a foreign government. Foreign governments sometimes patronize President Trump’s hotels and other businesses, for which they pay full price. Those suing him claim the income from these arms-length market transactions are prohibited “emoluments.”
I agree with the plaintiffs that the president should insulate his businesses from foreign governments. But the “emoluments” lawsuits do not hinge on our views. They hinge on what the Constitution requires. And constitutionally, these lawsuits are deeply defective.
First, private citizens likely do not have legal standing to maintain suits of this kind. Second, it is uncertain that the Foreign Emoluments Clause even applies to a president. Constitutional scholar Seth Barrett Tillman, for example, contends that the provision applies only to appointed offices, and he cites founding-era evidence in support.
Third, and most seriously, arms-length market transactions simply are not “emoluments” as the Constitution uses the word.
Two other constitutional provisions also feature the word “emoluments.” The Congressional Emoluments Clause forbids members of Congress from accepting federal jobs whose “emoluments” have been increased during their time in Congress. The Presidential Emoluments Clause bans the president from receiving “emoluments” beyond his statutory compensation from either the federal government or from any of the states.
The fact that the word appears three times in the Constitution is relevant because the law presumes it means the same thing in all three.
In the political discourse of the Founding Era, “emoluments” had four core definitions. From the narrowest sense to the widest, they were: (1) fringe benefits from a job (“the salary and other emoluments”), (2) salary plus fringe benefits (“the emoluments from employment”), (3) any financial benefits (“the emoluments from his business”), and (4) any benefits at all (“the emoluments of peace”). To determine the Constitution’s definition, we can’t say merely, “Well it could have meant this.” We have to study the document’s text and historical context.
Two years ago, I undertook a massive investigation of the subject. In addition to parsing the Constitution’s text, I examined every use of “emoluments” in the congressional records from 1774 through 1789. I studied state constitutions, laws, and legislative records. I scoured the records of the Constitution’s drafting and ratification. I looked at proceedings in the British Parliament and the contemporaneous trans-Atlantic emoluments reform movement.
At the investigation’s end it was clear that by “emoluments” the Constitution meant “salary and fringe benefits” — and did not include business income from arms-length market transactions.
The Founders had good reasons for excluding market transactions. They wanted to avoid clear conflicts of interest — hence the ban against receiving “presents” from foreign governments. But they also wanted to encourage successful business people to serve in government, so they allowed officials to retain business assets while in office. In addition, the Founders sought to forestall a professional political class. One way to do this was to permit officeholders to retain income sources for when they left office.
President Thomas Jefferson illustrates the compromise between purity and practicality. He was a tobacco farmer. Most large tobacco farmers exported the lion’s share of their crop, and foreign governments might well have purchased tobacco from Jefferson. No one seems to have suggested Jefferson couldn’t sell his tobacco to, say, the British government.
Moreover, Virginia law required tobacco growers to convey their product to state warehouses for inspection and storage. In exchange they received state receipts called “tobacco notes.” These were widely used as money. In other words they were “emoluments” as defined by the plaintiffs against President Trump. But no one seems to have alleged that the Presidential Emoluments Clause banned Jefferson from accepting state tobacco notes.
The “emoluments” charge against President Trump arose in academic environments deeply hostile to both the president and to private enterprise. But the Founders were not hostile to private enterprise. On the contrary, they admired successful business people and wanted to enlist their talents and knowledge for public service.
The courts hearing the emoluments lawsuits should dismiss them. That would be the correct constitutional decision. It might also blunt the baleful trend of equating policy differences with criminal or impeachable offenses.