by Bruce Dunlavy
(My blog home page and index of other posts may be found here.)

Not many of us employ the word “emoluments” in our active vocabularies, but in recent weeks and months it has popped up in examinations of the financial dealings of President Donald Trump. The context of discussion is the last paragraph of Article I, Section 9, of the Constitution:

“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 whatsoever, from any King, Prince or foreign State.”

When they wrote the Constitution, the Founding Fathers knew they were creating something unprecedented. Neither they, nor anyone else, had ever confronted the concept of a presidency. Their experience with Heads of State was only what had always existed in Europe – a hereditary monarch who ruled for life and whose descendants took on the position after his/her death. The idea of an elected chief executive, who would peacefully give up that office after a specified term of years or upon the election of another, was uncharted territory that was being explored as the Constitution was being written.

Based on the political theories of the Enlightenment, the new American government was created with the purpose of taking many of the powers of the executive (i.e., the monarch) and assigning them to the legislature. Among those were the unchecked power of monarchs to declare war or to withdraw funds from the national treasury, both of which are specifically granted solely to Congress in Article I, Section 8.

Having observed how European kings and other aristocrats used their vast wealth to buy influence in other countries, the Founders were rightly fearful of the possibility that the United States could come under the influence of foreign nobles. That is why, for example, Article II, Section 1 requires that the president be a “natural-born citizen” (for an interpretation of that, check my blog post on the subject) who had resided in the USA for 14 years. This was intended to prevent a European duke or some similar individual with vast inherited wealth from coming to the United States and buying the presidency.

As an analysis by the Brookings Institution demonstrates, the “emoluments” clause has the same purpose of reducing the chance for corruption of government. Its intent was to prevent ambassadors or other national representatives from being controlled or influenced by foreign money, the offer of a foreign title of nobility, or other foreign forms of influence while they were in foreign nations. It was not included in drafts of the Constitution, but was inserted at the insistence of Charles Pinckney of South Carolina. At first, the emoluments clause was aimed at the common European practice of monarchs giving expensive gifts to diplomats from other nations. The Founders feared – and rightly so – that engaging in the habits of hereditary aristocracy could sway, compromise, or conflict an individual’s opinions or actions, whether or not s/he was conscious of it. During the ratification process, the emoluments clause was cited (notably by Edmund Randolph of Virginia) as applying to the president as much as to diplomats.

Now a new consideration of the emoluments clause surrounds the business dealings of President Trump. Historically, when businesspeople have been elected to office, they have divested themselves or put their finances in a blind trust, administered by a disinterested party, during their term. The current president has not done that. Foreign officials visiting the American capital city regularly stay at the Trump International Hotel, which was opened with great fanfare just before the presidential election of 2016. When foreign officials and their entourages stay and dine at Trump’s hotel, foreign money goes directly into Trump’s business, profiting Trump. He also holds international meetings at his Mar-a-Lago property in Florida and other family holdings.

Does that mean the president will accommodate the wishes of foreign leaders and nations as he accommodates their bodies in his hotels in return for their money? I have no idea. No one could know; perhaps even Trump himself does not know. It is obvious that he is making money from it. Does it violate the “emoluments” clause? It is probably not what the Founding Fathers specifically had in mind when they wrote it, and any attempt to delineate what they would think of it now would be speculation.
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“Originalist” judges (those in the mold of Antonin Scalia) would likely say that the purpose of the clause is to prevent foreign attempts to influence American office-holders, not to prevent the president’s corporations from making money. I – decidedly NOT an originalist – would say that the issue in question is conflict of interest. Whether Trump can be swayed by some ambassador staying at his hotel is unknowable; his aims and purposes do not seem to extend beyond his own wealth and self-aggrandizement.
However, the mere appearance of a conflict of interest is something that must be avoided to lessen the likelihood of losing popular trust in our institutions of government.
Even at the lowest levels of government, any hint of a conflict of interest, no matter how small, is commonly prohibited. When I was a low-level government bureaucrat in a State regulatory agency, I was forbidden to accept so much as a cup of coffee from anyone in the regulated community. If you are a member of a school board, and you own the only dairy for 50 miles around, the school district must travel 50 miles to buy its milk for school lunches, because it would be a conflict of interest for you to be the supplier.

In this case, do I think President Trump is in violation of the emoluments clause? Yes, I do. Do I think the courts will bother with it? No, I don’t. They would demand evidence that emoluments from foreign nations have actually influenced the president, and I don’t know how you can prove that. In a world of possibilities, it’s a short reach, but that’s not going to be good enough for the courts. And, in any case, should the courts become involved, or the Justice Department begin an investigation, the Constitution allows Congress to approve any emoluments the president might have received and thus make the entire issue moot.

There is no question that Donald Trump used his money, fame, and connections to help propel him to the presidency. It appears that he is now using the office to enrich himself even more. Gaetano Mosca (1858-1941), of the Italian Elitist school of political science, is credited with the observation that, “In the developed world, money is used to obtain political power, while in the developing world, political power is used to obtain money.” Today we have a president who appears to be doing both.

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