The Constitution's Foreign Emoluments Clause

The Foreign Emoluments Clause was added to the Constitution to protect against bribery and corruption of federal officials by foreign governments. Traditionally, foreign governments have given gifts and items of value to visiting heads of state and other government officials in an attempt to gain favor. But the framers of the Constitution wanted to protect the government and its officials from that type of influence.

Where Is the Emoluments Clause in the Constitution?

Article I, Section 9, Clause 8:

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.

As Alexander Hamilton wrote in The Federalist No. 22, "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." The emoluments clause is meant as a broad prohibition against accepting emoluments and other gifts.

What Does the Emoluments Clause Prohibit?

The emoluments clause prohibits any government official from receiving a "present, Emolument, Office, or Title of any kind" from a foreign government without the approval of Congress. However, several Presidents have received gifts of value from foreign governments. Congress gave Presidents Martin Van Buren and John Tyler approval to accept gifts, but they were to be turned over to the government and not kept personally.

When the Constitution was written, an emolument was generally believed to mean any type of profit, benefit, or advantage. Today it is also interpreted to mean benefits or profits from private businesses. The broadest interpretation is that government officials should not receive anything of value from a foreign power without Congressional approval.

In 1993, the Office of Legal Counsel issued an advisory opinion that non-governmental members (attorneys and business people working in private practice) of the Administrative Conference of the United States, which fulfills a governmental purpose, were considered officers under the emoluments clause. 

The Office opined that members of the conference should not receive payments from their partnerships or firms if the payment would include some share or revenue generated from foreign government clients. This applied even though the conference members may not have worked directly on matters involving foreign governments. It was enough that the payments were paid for another partner's work and paid out to the conference member as a part of the firm's shared profits.

This advisory opinion shows the broad intent of the prohibition of emoluments. However, the issue of emoluments has never been discussed by the Supreme Court. The exact interpretation of the emoluments clause remains speculative in the absence of a ruling.

Emoluments Lawsuits Against President Trump

The subject of emoluments came to the forefront after the election of President Donald Trump. Trump had wide-ranging foreign business interests through the Trump Organization. There was concern that his continued involvement in the business could lead to trouble with the emoluments clause.

In the past, presidents transferred their assets to a blind trust to avoid any implications of conflicts of interest. Trump did not follow this precedent. Although he stepped away from the business (transferring operational control to his sons) and formed a regular trust, he continued to receive business briefings and was able to receive distributions from the trust throughout his presidency.

The emolument issues raised regarding Trump's continued involvement with his business were:

  1. Payments from foreign governments having officials stay or host events at the Trump International Hotel in Washington D.C.;
  2. Entities owned by foreign governments paying rent at Trump Tower in New York City; and
  3. The Chinese government granting 40 trademarks to Trump businesses.

Trump did not seek the approval of Congress, nor did Congress grant approval on its own for these actions.1

Two lawsuits were filed against Trump for these alleged violations and seeking to enjoin him from further violating the Emoluments Clause throughout his presidency. In District of Columbia v. Trump, the District of Columbia and the State of Maryland brought suit against Trump (as president and as an individual) regarding Trump's ownership of the Trump International Hotel in Washington D.C. and the bar, restaurant, and event spaces located there. 

The plaintiffs alleged that foreign governments were intentionally patronizing Trump International because of its connection with Trump in an attempt to curry favor with him. As cited in the complaint, a diplomat explained, "'Isn't it rude to come to [the President's] city and say 'I'm staying at your competitor?'" The plaintiffs alleged that the foreign governmental business at the hotel amounted to emolument. When a district court agreed to hear the case, Trump asked the Fourth Circuit Court of Appeals to allow for an immediate appeal or dismiss the case. The Fourth Circuit denied his request.

Another suit, Citizens for Responsibility & Ethics in Washington v. Trump, brought similar claims against the president regarding his ownership of Trump International Hotel, Trump World Tower, Trump Tower, and other businesses in New York City. The plaintiffs claimed that the president benefitted and would continue to benefit from payments made by foreign governments and agents at his hotels, restaurants, and other spaces in violation of the emoluments clause. Trump argued that the plaintiffs' alleged injuries did not give them standing to sue. But, the Second Circuit Court of Appeals allowed the case to move forward.

Trump appealed both decisions to the Supreme Court. However, by the time the Supreme Court granted certiorari in 2021, Trump only had one month remaining in his term. Therefore, the court vacated the appellate court judgments and directed the courts to dismiss the cases as moot.

The finding of mootness meant that the Supreme Court would not rule on the matter of emoluments. This meant there was no guidance provided regarding the meaning of emolument,2 what constitutes a violation of the clause, who has standing to bring a case for violation of the clause, and what can be done to prevent a violation of the clause in the future.

Footnotes

1. See Blumenthal v Trump 949 F. 3d 14 (D.C. Cir. 2020) Members of Congress sued Trump for violations of the Emoluments Clause. Congress alleged they had no means of enforcement to stop the president from continued violation of the clause. The case was dismissed for lack of standing.

2. The only legal determination of the meaning of emolument was decided by the District court in District of Columbia v. Trump solely for the purpose of the standing argument. The court assumed that" 'emolument' covers 'anything of value'...." 291 F. Supp. 3d at 732, fn. 2

 

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