Trump, Emoluments, and the Professoriate

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.”

So states the “Foreign Emoluments” clause of the United States Constitution—Article I, Section 9, Clause 8. Lawsuits have been filed in New York, Maryland, and Washington, D.C., alleging that President Trump is in violation of the clause. The plaintiffs claim that Trump’s business interests necessarily involve the president in drawing income from foreign governments. Every time the government of Myanmar or Poland lodges one of its emissaries at a Trump hotel, their reasoning goes, the president makes money, i.e., accepts an “emolument.”

Donald Trump’s financial assets are certainly fair game for criticism and debate, but this argument is weak. The Constitution’s text doesn’t lend itself to the sort of interpretation these plaintiffs want to believe.

The president’s most effective defender on the subject of foreign emoluments is not his own Justice Department but a pair of law professors: Seth Barrett Tillman, a law professor at Maynooth University in Ireland, and Josh Blackman, a professor at the South Texas College of Law. Tillman and Blackman have filed amicus briefs with each of the courts considering a foreign-emoluments suit. Their primary contention: that the Constitution’s ban applies only to persons holding office “under” the Constitution and thus only to appointed positions, not elected officials. While president, both George Washington and Thomas Jefferson accepted personal gifts from foreign dignitaries (a portrait of Louis XVI and a bust of czar Alexander I, respectively). When the Senate, in 1793, asked Treasury Secretary Alexander Hamilton to “lay before the Senate, at the next session of Congress, a statement of the salaries, fees, and emoluments ... of every person holding any civil office or employment under the United States,” Hamilton’s submission included nothing about any elected official.

The Department of Justice argues that the term “emolument” “refers to benefits arising from personal service in an employment or equivalent relationship.” But Tillman and Blackman’s more sweeping case is, in our view, peremptory.