The Courts and the Foreign Emoluments Clause

By Laurence Tribe, Joshua Matz, Jonathan E. Taylor, Deepak Gupta
Jan 31, 2017

By Laurence H. Tribe, Deepak Gupta, Joshua Matz, and Jonathan Taylor

I. INTRODUCTION

By the end of his first week in office, President Donald J. Trump had already provoked two major constitutional controversies. One of them—triggered by an executive order banning immigrants from seven predominantly Muslim nations and temporarily blocking all refugees—dominated the headlines, and rightfully so. Trump’s executive order was produced in a highly irregular manner and implemented in achaotic, brutal fashion. Even apart from these early and highly visible failings, Trump’s ham-handed order threatens American values and safety, will cause and exacerbate human suffering worldwide, and raises profound constitutional concerns. That is especially true given the arbitrary and invidious lines that it draws among religions and nations.

That irrationality, though, also speaks to something else: By including seven Muslim-majority nations while excluding other, neighboring Muslim countries like Saudi Arabia, Egypt, and the United Arab Emirates—where Trump has business interests—the selective immigration ban provides astark illustrationof the risks posed by Trump’s vast web of global financial ties. The American public and the international community have no choice but to wonder whether it is mere coincidence that the peculiar lines drawn by Trump so closely track his business empire.

In this sense, Trump’s order bears directly on the second constitutional controversy, involving the Foreign Emoluments Clause, which the Framers designed to prohibit the very conditions that could produce this sort of foreign financial entanglement. The Clause bars any federal officeholder from accepting payments or benefits—known in 18th-century language as “emoluments”—from any foreign state (unless Congress consents). Trump has been in violation of this provision since his very first moments in office, and he remains in violation of it today.

To put an end to Trump’s ongoing violation of the Constitution, a nonpartisan organization called Citizens for Responsibility and Ethics in Washington (or CREW) immediately filed alawsuitin federal court in Manhattan. (You can read the complainthere.) Some authors of this essay are among the counsel to CREW in that litigation. Since the suit was filed, much of the public discussion, especially from conservative and libertarian bloggers, has centered on whether a court should hear the merits of CREW’s caseat all—not on whether Trump is actually violating the Constitution and imperiling U.S. interests.

This in itself is remarkable. The President of the United States is sued on his first working day for violating the Constitution in a manner that risks his own fidelity to the American people, and the best the conservative blogosphere can muster is a fit of technical nit-picking over issues of justiciability. Nowhere have we seen a serious argument that Trump’s refusal to divest actually advancesanynational interest or policy, and only a bare handful of lawyers (mostly those paid by Trump himself) have even attempted to defend his conduct as lawful. In this light, it is revealing that the justiciability arguments advanced thus far against CREW’s litigation are riddled with faulty logic, baseless assertions, and hardly any thoughts on the underlying merits.

This piece briefly discusses those arguments and their many failings. It starts with standing, then turns to the political question doctrine and whether CREW has a cause of action. We conclude with a discussion of the merits, responding to a white paper put out by Trump’s law firm that attempts to justify his position by giving strange, surprising meaning to “emolument.”

II. STANDING

Rather than attempt to defend the constitutionality of Trump’s foreign entanglements, conservative commentators have trained most of their attention on the gateway question whether CREW has legal standing to sue. Most prominently, Professor Josh Blackman of South Texas College of Law in Houston has offered acritiqueof CREW’s standing, and Professor Jonathan Adler,chief architectof the failed challenge to Obamacare inKing v. Burwell, hasexpressedhis agreement with Blackman’s position. They argue that CREW has not suffered an “injury in fact” fairly traceable to Trump's unconstitutional conduct, as is required for standing under Article III.

On the other side of the debate, Professor Michael Dorf of Cornell Law School hasexplainedwhy CREW has standing under the Supreme Court’s unanimous decision inHavens Realty Corp. v. Coleman, 455 U.S. 363 (1982).Havensheld that an organization that has been forced to divert resources to combat a defendant’s unlawful action (quite apart from the suit challenging that action) has suffered “a concrete and demonstrable injury” for which the organization has standing to sue.Id.at 379. “Faithful application ofHavens,” Dorf argues, “leads to the conclusion that CREW has standing.” Approaching the question from a different angle, Professor Eric Segall has likewisecalledfor the case to be decided on the merits.

Needless to say, we think Dorf and Segall have the upper hand here, and we’re tempted to leave it at that. CREW’s complaint alleges that Trump’s myriad, ongoing Foreign Emoluments Clause violations have forced the organization (an ethics watchdog) to divert much of its resources to counteract these violations, at the expense of other projects and programs. As Professor Dorf cogently explains, that is an injury in fact underHavens.See Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904-05 (2d Cir. 1993).

Blackman’s critique, however, is so fundamentally misguided in so many different ways that we think it appropriate to offer a brief response now. His thesis is that a “careful study ofHavens” shows that CREW’s argument for standing is “incredibly weak.” He gives three reasons why he thinks that’s so—not one of which is even remotely persuasive.

1.Blackman’s first reason is thatHavens“concerned standing for damages, not injunctive relief.” But so what? For standing purposes, the distinction between these two forms of relief is primarily a temporal one: Because injunctive relief is forward-looking, a plaintiff seeking such relief cannot simply allege a past injury, but must allege (and eventually prove) “a continuing violation or the imminence of a future violation.”Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 108 (1998);see also Los Angeles v. Lyons, 461 U.S. 95, 109-10 (1983). A plaintiff seeking damages, by contrast, need only show a past violation.

Why this distinction should matter in CREW’s case, Blackman doesn’t say. The challenged conduct is plainly ongoing: Trump violated the Foreign Emoluments Clause last week; he’s violating it today; and he’ll violate it tomorrow. And the same goes for the injury inflicted on CREW: IfHavensis right that a perceptible impairment of an organization’s ability to carry out its mission is a “concrete and demonstrable injury,”455 U.S. at 379, then there can be no serious dispute that this injury is ongoing. UnderHavens, CREW has been harmed—and will continue to be harmed—in the past, present, and future.

Unable to confront this logic (or to offer any explanation for the relevance of the damages/injunction distinction), Blackman rests his assertion on a footnote in a divided panel opinion from the Sixth Circuit that itself cites no supporting case law and provides no reasoning. See Fair Elections Ohio v. Husted, 770 F.3d 456, 460 n.1 (6th Cir. 2014). That footnote points out (as Blackman does) that inHavens, “the plaintiff organization sought damages, not an injunction,” and asserts that “damages are a classic basis for standing.”Id.Then it says that “plaintiffs who have standing to bring a damages claim do not necessarily have standing to bring a claim for injunctive relief.”Id.That’s all true as far it goes. But again, what nobody attempts to explain—not the two-judge majority there, and certainly not Blackman here—is why an organization like CREWwouldn’t havestanding to seek an injunction if it had standing to seek damages. That’s because they can’t. Blackman’s first reason is thus wholly beside the point.

2.His second reason fares no better. Seizing on another irrelevant distinction, Blackman contends thatHavens“was very closely tied to the specific statutory scheme erected by Congress under the [Fair Housing Act],” while CREW presses a constitutional claim. Blackman’s sole authority on this score is again the footnote inHusted, which includes a sentence saying that “the injury to the plaintiff organization inHavenswas a distinct and palpable injury to a broad legal right intrinsic to the organization’s activities.”Id.This sentence misstates the nature of the injury recognized inHavensby conflating one part of the Court’s analysis with another.

Havensinvolved two types of plaintiffs: (1) individuals who sought information about available housing (the “tester” plaintiffs), and (2) a fair-housing organization that “provide[d] counseling and referral services for low-and moderate- income homeseekers.” 455 U.S. at 379. As to the first category, it is true that the Court relied on the statutory “right to truthful information concerning the availability of housing” in finding that a tester suffered a cognizable injury by receiving false information.Id.at 373-74. True, too, CREW’s case “does not involve false information.”Husted, 770 F.3d at 460 n.1. But what itdoesinvolve is the second category of plaintiff inHavens: a nonprofit organization that has “suffered impairment in its role of facilitating” its mission because of the “drain on [its] resources” created by the defendant’s unlawful conduct. As tothatplaintiff, the harm is a classic economic injury. So it is here.

It should therefore come as no surprise that the Second Circuit (where CREW’s case is being litigated) has appliedHavensoutside the context of the Fair Housing Act. That circuit has done so, for example, in a case raising a constitutional due-process claim, finding that an organization had standing because it had alleged that there was “some perceptible opportunity cost expended” by the organization given “the expenditure of resources that could be spent on other activities.Nnebe v. Daus, 644 F.3d 147, 157-58 (2d Cir. 2011). In short, the constitutional (rather than statutory) nature of its Foreign Emoluments Clause claim does not diminish CREW’s case for standing underHavensand its Second Circuit progeny.

3.That leaves Blackman’s final argument (and the real thrust of his objection): his disagreement withHavensitself. He “frankly [doesn’t] understand” how the Court’s unanimous decision in that case—which has never been overruled or even questioned by the Court—“can be reconciled” with its more recent decisions inSpokeo v. Robbins, 136 S. Ct. 1540 (2016), andClapper v. Amnesty International, 133 S. Ct. 1138 (2013). Of course, this issue—Havens’ continued validity—is properly reserved to the Supreme Court, not any inferior federal courts.See, e.g.,Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”). But the fact is, neitherSpokeonorClapperis irreconcilable withHavens. Let’s take each in turn.

Spokeoconcerned the ability of Congress to create standing where it might not otherwise exist by “identifying and elevating intangible harms” to the status of legally cognizable injuries. 136 S. Ct. at 1549. It did not citeHavens, much less suggest that its holding should be questioned. And, as just explained, the only part ofHavensthat’s at all relevant to theSpokeoquestion is the part about thetesters’standing—not theorganization’sstanding. In herSpokeodissent, Justice Ginsburg confirmed as much by citing toonlythat part ofHavens. It was in this sense, and this sense alone, that her dissent “was closely pegged to Congress creating a private cause of action” (as Blackman puts it). But that doesn’t mean that the part ofHavenson which CREW relies—the Court’s distinct holding that the organization had standing in its own right—is somehow on “shaky footing” followingSpokeo. Put simply,Spokeohas no bearing here.

Nor doesClapperundermine the relevant part ofHavens.Clapperconcerned a challenge to the NSA’s mass-surveillance activities. The plaintiffs alleged two theories of injury. The first was based on a fear of being surveilled “at some point in the future.” 133 S. Ct. at 1143. The Court held that this “theory offutureinjury” required “a highly attenuated chain of possibilities,” and hence “[did] not satisfy the requirement that threatened injury must be certainly impending.” Id.at 1143, 1148. CREW’s injuries, however, are not speculative at all, but real and ongoing.

The second injury inClapperwas the “present costs and burdens” incurred based on the fear of being surveilled.Id.at 1151. The Court did not deny that incurring these costs and burdens was indeed an injury in fact. Instead, it held that these “ongoing injuries” were “not fairly traceable” to the challenged action; in other words, it held that there was no causation.Id.The Court reasoned that these injuries were attributable to the plaintiff’s own speculative fear, and noted that a contrary holding would allow plaintiffs to “manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.”Id.

It is this aspect ofClapperthat Blackman seems to have in mind. He invokes it in the very title of his piece, stressing “CREW’s self-inflicted injury” (an implicit acknowledgement that CREW has in fact been injured). But whereas the plaintiff inClapperspent money to avoid a speculative injury, CREW again stands in contrast: Trump’s continuing Foreign Emoluments Clause violations have left the organization with little choice but to divert enormous amounts of time and money—typically spent on other programs—in an effort to push back against those violations, at the expense of its usual work. That is not self-inflicted. Nor is it a “generally available grievance” that could be asserted by “every citizen”—a key concern of standing doctrine.Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992). Nor, for that matter, is CREW “seeking relief that no more directly and tangibly benefits [the organization] than it does the public at large.”Id.No, the injuries CREW complains of are unique to its status as a leading ethics watchdog with preexisting programs that are being directly harmed day in, and day out. Article III’s “cases or controversy” requirement demands no more.

This is not to say that there are not reasonable questions about the scope ofHavensstanding. As Professor Dorf has asked: “What is to prevent people who oppose any government policy from forming an organization dedicated to opposing that policy and then suing on the ground that the pursuit of the policy by the government (or a government official) causes the organization to divert its resources to fighting the policy?” This is not an easy question, but Dorf notes at least three answers: First, that the plaintiffs inHavensand its progeny (like CREW) “were all pre-existing organizations.” Second, the “factual allegations must be rooted in fact or the parties and attorneys risk sanctions under Rule 11.” And third, “Havenshas been the law for almost 35 years, without any discernible floodgates problem.” With CREW being in the same position, and asserting the same theory of injury, there is no reason to think that this will change.

Nor is this to say that other plaintiffs with other forms of injury would not also have standing to sue. Conservative commentators do not deny that a competing hotel, restaurant, or event space in Washington, D.C., or New York City, for example, has likely suffered injury by losing the patronage of foreign diplomats to Trump-owned properties seeking to capitalize on his rise to the presidency. It is simply to say that, underHavensand its Second Circuit progeny, CREW has standing, and the arguments to the contrary do not do anything to alter that fact.

III. POLITICAL QUESTION DOCTRINE

Apart from standing, a few commentatorshaveassertedthatresolution of questions under the Foreign Emoluments Clause may be textually entrusted to Congress, and therefore subject to the political question doctrine. That claim is unfounded and does not survive scrutiny.

In recent years, the Supreme Court has repeatedly emphasized that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.”Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014) (citations omitted). As Chief Justice Roberts made clear inZivotofsky v. Clinton, the Court’s latest and most definitive pronouncement on the issue, “courts cannot avoid their responsibility merely ‘because the issues have political implications.’” 132 S. Ct. 1421, 1428 (2012) (quotingINS v. Chadha, 462 U.S. 919, 943 (1983)). This command extends even to cases that the Judiciary “would gladly avoid.”Id.at 1427 (2012) (quotingCohens v. Virginia, 6 Wheat. 264, 404 (1821)).

The so-called “political question doctrine” is a narrow exception to the rule that courts must hear all cases properly before them. It applies in two limited circumstances:

  1. “Where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department.”Zivotofsky, 132 S. Ct. at 1427.For example, the Court has held that it cannot review the procedures employed by the Senate in an impeachment proceeding, since the Constitution states that the “Senate shall have thesole Powerto try all Impeachments.”Nixon v. United States, 506 U.S. 224 (1993) (emphasis added).
  2. Where there is “a lack of judicially discoverable and manageable standards for resolving it.”Zivotofsky, 132 S. Ct. at 1427. For example, the Court has declined to adjudicate partisan gerrymandering challenges on the ground that it has not yet been able to identify a workable judicial standard.See Vieth v. Jubelirer, 541 U.S. 267 (2004).

FollowingZivotofsky, these are theonlyrelevant criteria. To be sure, underBaker v. Carr, 369 U.S. 186 (1962), and its progeny, the Court once reckoned with a variety of ill-defined “prudential factors.”[1] ButZivotofskyjettisoned that approach; indeed, the Chief Justice’s brisk opinion neither mentioned nor appliedanyof theBaker v. Carrfactors. This turn away from reliance on an avowedly policy-driven approach to matters of justiciability is consistent with the Roberts Court’s pronounced skepticism of prudential limits on its power to hear and decide cases.See, e.g.,Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

Beginning with the text, the Foreign Emoluments Clause provides as follows:

[N]o 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.

The only conceivable basis for a “textual commitment” argument is the “Consent of the Congress” provision—presumably on the theory that Congress’s capacity to consent to a foreign emolument (even if never exercised) wholly precludes judicial involvement. But that conclusion would be at odds with precedent, grammar, and reason, and has nothing to recommend it.[2]

To start, the Foreign Emoluments Clause is not the only part of the Constitution to use the phrase “Consent of Congress.” Consider these Clauses 3 and 3 from Article I, Section 10:

Clause 2: No State shall, without the Consent of the Congress, lay anyImpostsorDutieson Imports or Exports . . .
Clause 3:No State shall, without the Consent of Congress, lay anyDuty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in suchimminentDanger as will not admit of delay.

(Emphasis added.)

Here, too, the Constitution prohibits a particular governmental actor from engaging in specific conduct, unless Congress consents. Indeed, the structural similarity between these clauses and the Foreign Emoluments Clause is striking. Yet nobody believes that these clauses present a political question. To the contrary, the Supreme Court has long adjudicated cases arising under these constitutional provisions.See, e.g.,Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. 1, 6 (2009);Dep’t of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 (1964);Canton R. Co. v. Rogan, 340 U.S. 511 (1951)​;Brown v. State of Maryland, 25 U.S. 419 (1827). These cases (spanning three different centuries) completely foreclose reliance on the “Consent of Congress” language as evidence of a textually demonstrable constitutional commitment of the issue to Congress.

Precedent is also instructive in another respect: it shows what anactualtextual commitment looks like. And the answer is: not like the Foreign Emoluments Clause. Thus, inNixon v. United States, the Supreme Court relied on the fact that the Impeachment Trial Clause plainly forbade judicial involvement by vesting “sole Powerto try all Impeachments” in the Senate.506 U.S. at 229-231 (emphasis added).Thatis what it means for the Constitution to give one branch, and one branch alone, power over an issue. The congressional-consent provision has a fundamentally different purpose: rather than preclude judicial adjudication of violations, it specifies circumstances in which Congress can create exceptions to the underlying rule. As a matter of grammar and function, this is nothing like the Impeachment Trial Clause.

Common sense compels the same result. The congressional-consent provision is most naturally read to mean that without congressional approval, any foreign emoluments that certain federal officials receive are unconstitutional. In other words, the consent provision allows Congress to validate particular, otherwise illegal transactions. Including this power in Article I makes perfect sense if one assumes that the clause is judicially enforceable: Congress is empowered to immunize federal officials from potential liability in court.

But the congressional-consent provision makes very little sense if the provision can be enforcedexclusivelyby Congress. In that case, Congress is the only relevant actor. It does not need to “consent” to an official’s receipt of foreign emoluments in order to validate them; rather, all it need do is take no action at all. That is, if compliance with the Foreign Emoluments Clause were a political question, then Congress would need only exercise its most treasured power—inaction—to effectively validate foreign emoluments. In practice, there would be no requirement of formal congressional action to affirmatively approve particular foreign emoluments. Yet this would turn on its head the rule of decision set forth in the Foreign Emoluments Clause, which makes clear that foreign emoluments are illegal until Congress explicitly says that they are not (rather than “until Congress does nothing and simply lets the foreign emoluments persist”).

These perverse consequences counsel strongly against reading the congressional-consent provision as a textual commitment to Congress—especially given that other provisions in the Constitution referring to “Consent of Congress” are understood as requiringaffirmative consent. Put simply, in this case as in so many others, Congress’s authority to act and authorize does not mean that its failure to do so precludes a judicial accounting of illegal conduct.

IV. CAUSE OF ACTION

Some commentators have alsosuggestedanother threshold hurdle: that CREW might not have a cause of action because no statute specifically provides for one.

This concern has no basis in history or precedent. Unlike an implied statutory claim (which is disfavored), or an implied constitutional claim for damages (also disfavored), a direct action for equitable relief has long been permitted in situations like this one: when a federal official engages in unconstitutional conduct that harms someone else, and that person asks a court to enjoin the conduct.See, e.g.,Ex parte Young, 209 U.S. 123, 148 (1908);see also Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378, 1384 (2015) (“The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.”);Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (contrasting a direct action in equity with an implied damages claim, and noting that “injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally”). Congress can change that default rule if it chooses, but there is no hint that it has done so here.

So the only way CREW wouldn’t have a cause action is if the general rule were somehow inapplicable in cases involving constitutional provisions that do not create any individual rights. And indeed, in 2010, the federal government advanced an argument of just this stripe. In that case—also involving structural provisions of the Constitution—the Solicitor General contended “that an Appointments Clause or separation-of-powers claim should be treated differently than every other constitutional claim.”Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 491 n.2 (2010). The Court rejected this argument, remarking that the government “offer[ed] no reason and cit[ed] no authority why that might be so.” Id.

The Court’s logic is equally true here. The traditional rule allowing for equitable relief from unconstitutional conduct therefore applies with full force. That conclusion is reinforced by the fact that the Constitution’s structural provisions—including the Foreign Emoluments Clause—ultimately help to safeguard individual liberty and dignity.See, e.g.,Bond v. United States, 564 U.S. 211, 222 (2011).

V. THE MERITS

In a recentwhite paper, Trump’s lawyers at Morgan Lewis have acknowledged (and rightly so) that the President holds an “Office of Profit or Trust” and is subject to the Foreign Emoluments Clause. But rather than recognize that Trump’s conflicts are forbidden by the Constitution, they have offered a half-hearted, half-baked defense of Trump’s position. Their analysis reads the Foreign Emoluments Clause through a distorted lens that obscures its text, history, and purpose, and that fails even to address major parts of Trump’s illegal conduct.

We suspect that the weakness of Trump’s position on the merits—and the total absence of any basis for arguing that his glaring conflicts of interest are good policy—helps explain his defenders’ fixation on the technical questions addressed earlier in this memo.[3]

1.The nature and scope of President Trump’s violation of the Foreign Emoluments Clause have been described at length by many commentators (including in adetailed Brookings Institution memo, and articles published by theNew York Times,Washington Post, Guardian,Atlantic, Politico, Slate, ProPublica,Vox,CNN,The Hill,Bloomberg).

To summarize the key points: Because of his ownership stake in the Trump Organization, Trump’sprivate financial interestsare intertwined with a business empire subject to many possibleburdens and benefitsabroad. None of Trump’s “solutions”fixes this problem. As a result, in his dealings with foreign powers, Trump may be guided not only by the interests of the United States, but also by those of the business that bears his name—unless he totally stops caring about his money (we’re not holding our breath). It is the design and purpose of the foreign emoluments clause to eliminate precisely this kind of blurred loyalty.[4]

2.Recently, Morgan Lewis undertook to explain all this away. To that end, the relevant section of their white paper opens with a flourish, citing Justice Scalia for the proposition that “the scope of any constitutional provision is determined by the original public meaning of the Constitution’s text.” Probably mistaken, but clear. After that, things get murkier.

The white paper’s principal conclusion is that an “emolument” means only “a payment or other benefitreceived as a consequence of discharging the duties of an office” (emphasis added). In other words, the white paper’s central postulate is that foreign government payments to the President pose no constitutional problem under the Foreign Emoluments Clause unless they’re payments specificallymade in exchange for an official presidential action, like vetoing a bill the foreign government doesn’t like or appointing a cabinet member that government favors. Only payments made for actions in “the performance of an office” are prohibited.

On this basis, the white paper concludes that “emoluments” did not “encompass all payments of any kind from any source, and would not have included revenues from providing standard hotel services to guests, as these services do not amount to the performance of an office, and therefore do not occur as a consequence of discharging the duties of an office.”

Halfway through its defense of that point, however, the white paper abruptly changes tack, and starts arguing that “fair market value” transactions—like hotel rentals to foreign powers—cannot qualify as “emoluments.” Even as they weave this argument through the rest of the memo, at no point do Trump’s lawyers bother to define their key term, “fair market value.”

Every single premise and every single conclusion of this analysis is wrong.

To start, there is a glaring inconsistency in the white paper’s reasoning: the definition of “emolument”cannotinclude both an “official act” rule and a “fair market value” rule. That is because there isno such thingas “fair market value” for the official services of the President of the United States. As we explain in greater detail below, if a foreign power gives the President money or any other benefit “as a consequence of discharging the duties of [his] office,” the concept of fair market value is wholly inapplicable. Rather, the applicable constitutional concept in that circumstance is “bribery” (and, in some circumstances, “treason”).

Thus, in arguing that “fair market value” transactions do not qualify as emoluments, Trump’s lawyers necessarily concede that the term “emolument” does (or might well) apply to action taken by Trump in his private rather than in his official capacity. At best, this is a mightily subtle argument in the alternative. At worst, it is deliberate obfuscation of a key point.

With respect to emolumentsnotinvolving payment for official acts, the white paper engages in another sleight of hand: it concludes that the only relevant dealings with foreign powers will be fair market value exchanges, like hotel room rentals, that do not permit favors or sweetheart deals. As we haveexplained, however, that conclusion is dead wrong. There will beno shortageof commercial, regulatory, licensing, and investigatory contexts in which foreign powers can (and will) give the Trump Organization special treatment in hopes of influencing the President. Trump’s lawyers make no defense of such conduct under the Foreign Emoluments Clause because there is no defense. Here, Trump’s constitutional violations are clear as day.

But even limiting attention to “fair market value” deals, the white paper totally dodges important questions about what exchanges are permitted between the President and foreign powers. In general, fair market value is understood as the price at which an asset will trade between a willing buyer and a willing seller when all of its attributes are known equally to both. Under that definition, would Trump’s lawyers say that “fair market value” is exceeded only if rooms at Trump Hotels are rented to foreign diplomats at higher rates than they’d be rented to other customers? What about a scenario where rental prices remain the same for everyone but many rooms that would have gone unoccupied are booked by foreign powers seeking to influence Trump, thereby dramatically increasing the profitability of his hotels? And if Trump’s new job does allow the business to raise prices at all Trump hotels—partly because foreign leaders are willing to pay more money, or rent more rooms, to curry favor with the President—is Trump allowed to reap the benefits of that spike in the “fair market value” of his business?

These questions are not hypothetical. Some diplomats have openly speculatedthat “spending money at Trump’s hotel is an easy, friendly gesture to the new president.” And perhaps coincidentally (but probably not), the cocktail prices at Trump’s D.C. hotel recentlyincreasedfrom a range of $16 to $21 pre-election to a range of $24 to $100.

These are just a few issues that confront efforts to say that fair market value transactions are allowed under the foreign emoluments clause. Trump’s lawyers address none of them.

In sum, Morgan Lewis never reconciles the inconsistency between its “official act” and “fair market value” definitions of “emolument”; completely misses a large number of contexts where Trump’s businesses will receive special treatment from foreign nations; and fails to offer any definition of “fair market value” despite obvious ambiguities in that limitation.

3.Regardless, the white paper is wrong on all accounts. The foreign emoluments clausedoes notapply only to foreign payments in exchange for official acts. And itdoesapply to fair market value transactions between the President’s business and foreign governments. This conclusion is required by every applicable principle of constitutional interpretation.

Constitutional Purpose

As then-Deputy Assistant Attorney General Samuel A. Alito, Jr. oncenoted, “The answer to the Emoluments Clause question . . . must depend [on] whether the consultancy would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition.” This is a commonsense intuition: if we know what the Framing generation sought to achieve, we should seek to facilitate, not frustrate, that goal.

The white paper, however, does not even attempt to justify its reading of “emolument” by reference to constitutional purpose. Instead, it flatly deems irrelevant “subjective conceptions of the policies behind the Clause.” It is curious that professed originalists would so quickly dismiss considerable historical evidence about why this clause was written and ratified in the first place.

The wrongness of Trump’s position follows directly from thewidely-understoodpurpose of the Foreign Emoluments Clause. Reacting to their experience with devious monarchs—including the King of England, who had seduced Parliament with public and private favors of all kinds—the Framers added this provision to “preserv[e] foreign Ministers & other officers of the U.S. independent of external influence.” And they used the most sweeping language possible because they were painfully familiar with the manifold forms of corruption. They knew that only a broad, prophylactic rule would effectively ward against the many and unthinking ways in which an official’s loyalty could be clouded by improper financial dependencies on foreign powers.

Given this underlying purpose, an “official act” requirement makes no sense. Trump’s lawyers would allow unlimited foreign payments to the President, so long as the President is not engaged in the specific duties of his office when he gives foreign governments their money’s worth in services. But this myopic, single-transaction perspective misses the forest for the trees. Just imagine if the President owned a company that provided nearly all of his income and exclusively did business in Russia. Could it really be said that the President would act free of private financial motives in his otherwise-unrelated public dealings with Putin? Why would people who added this broad anti-corruption rule to the Constitution leave such a gaping hole in its shield against subversive foreign influence, especially after their encounters with wily European rulers?

Indeed, it would have been naïve—and self-defeating—to valorize any supposed distinction between the President’s “office” and the man himself. While Trump’s lawyers may draw that line, you can rest assured that foreign powers will not. When they confer benefits on the Trump Organization and brag about it publicly (or in private meetings with Trump or his children), they will do so in an effort to sway Trump in hisofficialcapacity, and thus to push U.S. policy toward their interests. In that real sense, foreign powers will confer valuable benefits on Trump the man with the goal of influencing how Trump the president discharges the duties of that office. The impossibility of proving that unsavory intent and effect on a case-by-case basis is why the Constitution prevents the very conditions of possibility for such corruption.

Ultimately, the white paper’s reading of “emolument” reduces that word to little more than a prohibition on quid-pro-quo bribery: foreign governments can’t pay the President or confer other benefits on him in exchange for official Presidential actions. Yet all available evidence shows that the original purpose of the Foreign Emoluments Clause extended well beyond covering mere bribery (which, as we describe below, is already addressedelsewherein the Constitution).

Indeed, limiting “emolument” to payment for official acts would unquestionablydefeatthe major objective of the clause. This point is demonstrated by the Supreme Court’sdecisionlast Term inMcDonnell v. United States. There, the Court let Governor Bob McDonnell off the hook for some very sketchy dealings—and sharply restricted what qualifies as an “official act” in federal bribery law—because it worried about the implications of giving prosecutors free reign to target “pay for play” bribery schemes. AsMcDonnellshowed, it is exceptionally difficult in practice to delineate and enforce bribery laws, and their “official act” requirements, in contexts involving high-level political actors. That is especially true given how complex and secretive the relevant transactions often are, and how difficult it can be to prove the parties’ true intentions.

The Framers instead chose a wiser course. Rather than target quid-pro-quo bribery in the Foreign Emoluments Clause—a rule that could fast become mired in technicalities and difficulties of proof—they preemptively barredallforeign financial entanglements that could imperil the President’s integrity and subvert his judgment. And that shield against corruption simply would not work if limited exclusively to payments given in exchange for “official acts.”

Nor would an exception for “fair market value” transactions, however defined, make sense. Consider this hypothetical: You own a business kept afloat by fair market value transactions with Johnny. You know that you and your children would lose everything if Johnny stopped buying your services. If Jane hired you to represent her in negotiations with Johnny and asked you to take Johnny for everything he’s worth, do you really think you could faithfully represent Jane’s interests? Could you sit across the table from Johnny, who holds your bank account and financial fortune in his hands, and completely remove yourself from any private interests while negotiating on Jane’s behalf? If you think you can, you’re made of tougher stuff than we are.

The point here is simple: Trump’s business (and thus Trump himself)profitfrom fair market value transactions. That is why his business enters into them. And all of the concerns about improper financial dependence that underlie the clause apply with full force to federal officials whose livelihoods are based on commercial dealings with foreign actors.

Original Public Meaning

Trump’s lawyers don’t even pretend to explain how their reading of the Foreign Emoluments Clause achieves that provision’s purpose. Instead, hiding behind some Scalia citations, they assert that they prevail under the onlytruemethod of interpretation: original public meaning.

But even as an originalist matter, their conclusions just don’t stand up. Frankly, the white paper reflects poorly-done, result-oriented originalism. It takes more than a handful of old citations to construct persuasive originalist arguments, and by that standard the white paper falls short.

John Mikhail has nicelycapturedone part of the problem: rather than rely on sources from the 1780s and 1790s, the white paper “relies on three Attorney General opinions from 1819, 1831, and 1854; one failed constitutional amendment from 1810; one obscure Supreme Court decision from 1850; and a handful of more recent comptroller general and OLC opinions, primarily from the 1960s, 1970s, and 1980s.” Indeed, as Mikhail observes, the white paper’s only 18th century source for its interpretation of “emolument” isThe Federalist(which, by the way, also has plenty of uses of “emolument” cutting the other way). For lawyers who deem 1787 the decisive moment in legal time, Trump’s team is embarrassingly short on period-appropriate sources.

A more comprehensive view of the historical record shows that the word “emoluments” appears to have been used in many different senses. Sure, sometimes it was used in relation to the benefits associated with discharging the duties of an office. But in many, many other instances, it was used to encompass a broad universe of benefits or payments, including in unmistakably private contexts. Mikhail has listed numerous examples of such usage (e.g., The Farmer Refuted (1775), the Virginia Declaration of Rights (1776), and the Constitution of Pennsylvania (1776)).

This view is also supported by founding era floor-statements that refer to “emoluments” plainly unrelated to official duties. For instance:

“The Indian trade is of no essential service to any Colony. . . . Theemolumentsof the trade are not a compensation for the expense of donations.”
“[I]f the carrying business be [eastern states’] natural province, how can it be so much extended and advanced as by . . . having theemolumentof carrying [western states’] produce to market?”

Or consider thisspeechby Edmund Randolph at the Virginia Ratifying Convention, regarding the Foreign Emoluments Clause:

This restriction is provided to prevent corruption. All men have a natural inherent right of receivingemolumentsfrom any one, unless they be restrained by the regulations of the community . .

It is difficult to see why Randolph would think “all men” have a natural right to receive “benefit[s] received as a consequence of discharging an office.” Rather, he’s clearly referring to economic transactions in the private sphere (presumably including fair market value exchanges).

This usage accords with Founding-era dictionaries. For example:

  • Samuel Johnson’sA Dictionary of the English Language(1785)defined“emolument” merely as: “Profit; advantage.”
  • TheOxford English Dictionaryliststwo definitions dating to the Founding: “1. Profit or gain arising from station, office, or employment . . . . 2. Advantage, benefit, comfort.”
  • Noah Webster’sAmerican Dictionary of the English Language(1828)providedtwo definitions: “1.The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office, as salary, feels and perquisites. 2.Profit; advantage; gains in general.”

All of these definitions encompass far more than compensation for services rendered as a federal official, and would have included financial benefits from services rendered to foreign powers in a private capacity. What’s more, they would all encompass fair market value exchanges.

Judge Leventhal oncewarnedthat investigation of legislative history can become an exercise in “looking over a crowd and picking out your friends.” Well, that is exactly what originalism has become in the hands of Trump’s lawyers. Except most of the “friends” they pick out aren’t even from the right century.

In our view, the weight of the available evidence demonstrates beyond reasonable debate that the term “emolument” was understood by ordinary lawyers and those laymen who had a view of the matter in late 18th century America to cover a broad array of financial benefits unconnected to official governmental acts. That same evidence offers no indication at all of a “fair market value” exception to the term. At absolute minimum, it is clear that “emolument” was not a well-defined term of art in the late-18th century, and that it was often used in a manner wholly inconsistent with the limitations constructedpost hocby Trump’s legal team.

Constitutional Text

To the extent original public meaning is indeterminate, or shows that there werenumerous meaningsof “emolument” in the 1780s, the Constitution’s text helps to resolve the resulting interpretive question. It tells us, in no uncertain terms, to prefer abroaderdefinition, by stating that federal officials are forbidden “anypresent, Emolument, Office, or Title,of any kind whatever. . . .” The Framers, who were familiar with the meaning of the words they used, deliberately included interpretive guidancetwiceinstructing us to favor broad over narrow views of “emolument[s].”

ContraTrump’s lawyers, this understanding of “emolument” does not render the term “present” redundant (though some redundancy is hardly a vice in a provision with such sweeping purpose). Whereas “present” captured unreciprocated, possibly unsolicited gifts, “emolument” often was used in reference to benefits resulting from some kind of exchange—whether involving private or official services, and including fair market value commercial transactions. To be sure, it is also true that “emolument” was sometimes used in a manner approximating “present” or divorced from any exchange, but that overlap simply demonstrates the Framers’ desire to captureall mannerof financial relationships. It is just perverse to artificially narrow “emolument” to avoid a hint of redundancy with “present,” as the white paper does.

If anything, it is the Trump interpretation that risks redundancy. Article II, Section 4 of the Constitution provides that “The President, Vice President and all civil Officers of the United States, shall be removed from Office onImpeachmentfor, and Conviction of,Treason, Bribery, or other high Crimes and Misdemeanors.” Given that the Framers addressed bribery and deemed it an impeachable offense in Article II, there would have been little reason to limit Article I’s definition of “emolument”onlyto bribery. Yet Trump’s lawyers would read “emolument” to mean virtually the same thing as bribery: offering something of value to influence official action.

Thus, not only does Trump’s reading create redundancy between emolument and bribery, but it raises a further question: why would the Framers provide explicitly that such transactions areallowedfor purposes of the Foreign Emoluments Clause, so long as Congress consents? Under what circumstances would they have imagined that Congress might consent to payments by a foreign power to the President made with the intent of receiving his official services? Given that they elsewhere made such conduct impeachable, this seems awfully improbable.

We must address one last point in the white paper. Retreating from the 18th century, Trump’s lawyers refer to the Titles of Nobility Amendment, a proposed amendment from 1810 that barred all United States citizens and not just federal officials from “accept[ing] and retain[ing] any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power.” They assert that if “emolument” had the broadest possible meaning, this un-enacted amendment would have outlawed all foreign trade—and surely the public didn’t intend that absurd result. This is a fair point. On the other hand, the text of the proposed amendment is also a serious problem for the white paper. After all, if an “emolument” is truly a benefit associated with the duties of an office, in what respect would it even have beenpossiblefor non-officer “citizen[s] of the United States” to receive foreign “emolument[s]”?

Truth be told, it is difficult to drawanyinferences from the never-enacted Titles of Nobility Amendment. As scholars haveremarkedin exasperation, we have virtually no information available to us about contemporaneous debates or understandings of this text. The prudent course is to avoid placing any significant weight on this historical oddity.

Executive Branch Precedent and Practice

Finally, when presented with legal questions relating to the political branches on which there is little judicial precedent, it is common to consider Executive interpretation and custom. Here, Trump’s position cannot be squared with several opinions of the Department of Justice’s influential Office of Legal Counsel (OLC), or with well-reasoned modern presidential practice.

For instance, in 1982, OLCconcludedthat the Foreign Emoluments Clause barred a U.S. Nuclear Regulatory Commission employee from receiving foreign payment for reviewing the design of a Mexican nuclear power plant—even though he would have done that work in his leave time, rather than in any kind of official capacity, and even though there is no indication that he would have received something other than fair payment. Apparently the definition of “emoluments” that seems so obvious to Trump’s lawyers never even occurred to OLC.

To take another example, in 1993, OLCconsideredincome received by law firm partners who served as advisors on the Administrative Conference of the United States. While none of these lawyers represented or had any dealings with foreign governments, their law firms had foreign government clients, and some portion of their partnership distribution thus consisted of (fair market value) income from foreign powers. OLC found that these distributions qualified as forbidden foreign “emoluments,” even though no member of the Administrative Conference personally rendered any services to foreign clients, let alone services in an official capacity.

Trump’s legal team dodges these examples, asserting that “the factual circumstances giving rise to [OLC] opinions finding Foreign Emoluments Clause violations are different from those here.” Of course, the circumstances are different. Trump is as unique a “circumstance” as have ever occurred in American conflict-of-interest law. But the principle underlying these opinions is clear, consistent, and applicable. As a former Attorney General onceobserved, the Foreign Emoluments Clause is “directed againsteverykind of influence by foreign governments upon officers of the United States” (emphasis added).

Presidential practice is consistent with the logic of these opinions. As theNew York Timeshasreported: “Every president in the past four decades has taken personal holdings he had before being elected and put them in a blind trust in which the assets were controlled by an independent party” or the equivalent. Rather than look for loopholes related to their supposed “private” business dealings, or the fair market value of their services, president after president conformed to the requirements of the Constitution (which also happen to be good policy).

From a living constitutionalist perspective, we would contend that this presidential practice over the past half-century—informed by post-Nixon developments in American legal and constitutional norms—reflects an appropriately heightened sensitivity to the appearance and reality of improper financial influence in politics. That development, in turn, has become part of our tradition and should help give meaning to even our oldest anti-corruption provisions.

3. To sum things up: Despite a glossy veneer of originalism, the cramped definition of “emoluments” advanced by Trump’s legal team doesn’t pass muster underanytheory of interpretation. Considerations of constitutional text, history, practice, and purpose all strongly support the conclusion that “emolument” refers to any benefit—rather than only to benefits received specifically in consequence of discharging the responsibilities of an office, or benefits not constituting “fair market value” for services rendered.

Accordingly, the white paper is triply deficient. It fails to reckon with most of Trump’s constitutional violation. It leaves key terms undefined in ways that invite corruption. And it rests upon a view of “emoluments” that does not withstand scrutiny.

If that is really the best defense of Trump’s extreme position, then all it proves is the clarity of Trump’s constitutional violation. And that’s what really matters here.

Footnotes

[1] To date, commentators have not raised concerns about crafting judicially manageable standards for applying the Foreign Emoluments Clause—and for good reason, given that it would pose little difficulty for courts to craft doctrine in this field

[2]Writing separately inZivotofsky, Justice Sotomayor described theBaker v. Carrfactors as follows:

(1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) “a lack of judicially discoverable and manageable standards for resolving it”; (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”; (4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”; (5) “an unusual need for unquestioning adherence to a political decision already made”; or (6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

132 S. Ct. 1431 (quotingBaker, 369 U.S. at 217) (Sotomayor, J., concurring in part and concurring in the judgment).

[3]NB: This analysis is based largely on a blog post and memorandum that Larry Tribe and Joshua Matz recentlypublishedunder the auspices of the American Constitution Society. We are grateful to ACS for their permission to borrow from that analysis.

[4] At stake here is more than the abstract principle that the President, above all other officials, must have only the interest of “We the People” at heart in his decisions. One can criticize the terrifying implications of Trump’s “America First” slogan while still recognizing the concrete value of ensuring that nothing distracts the President from undivided devotion to the interests of the United States. Workers and consumers, for example, count on such loyalty whenever the President negotiates trade deals. Soldiers place their lives in the President’s hands and trust that he will send them into danger only for the greater good of the Nation.

When the President orders his affairs such that foreign powers can seek influence through his private bank account, he betrays our collective trust. Now all Americans must worry that foreign emoluments extended to the President will translate into American jobs being shipped overseas or American consumers being stiffed. Our soldiers must worry that they may be deployed abroad because the President’s personal attachment to (and private investment in) Trump-branded properties will result in otherwise-avoidable conflagrations.