Many of the Wikipedia-driven insta-experts on the Electoral College are now transforming into insta-experts on the Emoluments Clause, claiming it can be used to impeach President Trump. So what is the clause, and in practical terms, how might it affect Trump?
Here is the wording, from Article I 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 whatever, from any King, Prince, or foreign State.
This language was intended to bar office holders from accepting gifts—the full definition of “emolument” includes a salary, fee, or profit from employment or office—from foreign sovereigns. The Founders’ intent was to prevent foreign influence-buying.
Insta-experts seem to believe Trump will be in violation of the Emoluments Clause literally as he takes the oath of office, and thus impeachment proceedings can follow, all because of his global business interests. But unlike most everything else in the Constitution, issues connected to this clause have never gone before the Supreme Court. There is very little case law and very little legal study. It has simply not come up in any significant way.
Much of what is being written appears to come from Clinton supporters in denial. The election failed, the recounts failed, the move to recruit faithless electors failed, the sludge of Russian allegations failed, Meryl Streep failed, and Beyoncé not pole-dancing at the inauguration failed. All that stands between democracy and the abyss is the Emoluments Clause.
Luckily, though, there are non-partisan sources out there, including the American Bar Association and the National Constitution Center. Before wading through your next fake-news article, let’s synthesize some of what has been said about the Emoluments Clause.
The clause is aimed at governments—those Kings and Princes—seeking to influence the United States. It has nothing to say about Trump’s companies doing business with entities controlled in whole or part by foreign governments in our globalized modern era. State-owned businesses, such as the Bank of China, are now common in many parts of the world.
The clause is also untested in regards to complex corporate ownership. It is common in the media to state, matter-of-factly, that “Donald Trump owns a hotel in Dubai.” Yet most of Trump’s business, like most corporate business in general, is done through a web of companies that are legal entities of their own. Some involve stockholders, and sometimes Trump holds a minority position. Similar questions would likely have been asked about foreign governments’ donations to the Clinton Foundation had Hillary been elected president. None of this existed when the clause was written, and all of this requires a 21st-century judicial interpretation.
Further, the definition of “emolument” is more complicated than simply doing business overseas. The clause may allow for fair-market-price transactions, for example. So, if a piece of real estate is legitimately (and yes, we’ll argue over that word) valued at $100,000, it is not a bribe or a representation of influence to sell it for $100,000. It would be more questionable to accept $150,000.
Similarly, though some have claimed it would violate the clause if a foreign diplomat stayed at a Trump hotel and paid the standard room price, that’s a question of legal exchange. If Trump accepts money from Iran to remove sanctions, that’s a bribe, but if a Trump hotel collects money for a night in the bridal suite, that’s a simple exchange of goods and services. Does the Emoluments Clause apply? It is not clear. (Regardless, Trump has promised to donate the profits from such transactions to the Treasury.)
Some legal scholars argue the Emoluments Clause doesn’t apply to the president at all. A different clause of the Constitution makes bribery an impeachable offense. That clause specifically mentions the president by title, while the Emoluments Clause does not. In addition, other parts of the Constitution that specifically address the president typically include a separate delineation for “officials,” the wording used in the Emoluments Clause.
However, precedent suggests the clause does apply. Several previous presidents have sought the “consent of Congress” it requires: George Washington was allowed to accept a foreign gift, Andrew Jackson was not, and Martin Van Buren had to agree to a 50-50 split with the State Department over gifts from the Imam of Muscat. On the advice of the Office of Legal Counsel, President Obama did not seek Congress’s permission before accepting the Nobel Peace Prize and the money it comes with, but this was merely because the Nobel Committee isn’t a foreign state; the OLC stated unambiguously that the president indeed holds an “Office of Profit or Trust.” There was no actual challenge in any of these case, and none involved doing business.
Another issue is who has “standing” to sue over any of this. One legal professor feels no one seems to have standing, and so states that “if there are concerns about how President Trump handles his various investments, the only remedies will be political.” Meaning vote him out of office in the next election if you don’t like what he’s doing.
There are also those who skip most of the legal arguments, and focus on the so-called larger picture; clearly, the Founders did not want the president beholden to foreigners. So never mind the parsing of words; the Emoluments Clause was written precisely to stop a person like Trump.
In terms of practical matters, the less Trump makes public about his business dealings, the less chance anyone has of looking into any of this. Congress can’t even think about impeachment unless there is a “high crime or misdemeanor” involved, and a Trump business deal per se is far from definitive evidence of that. Impeachment requires the agreement of a lot of people in Congress, and Congress for at least the next two years is controlled by the Republicans.
And should anyone find a way to pursue it, it would be easy for Trump’s side to drag the issue through the courts for some time before eventually landing at the Supreme Court.
Certainly, there are legitimate concerns over conflicts of interest during the Trump administration; no president in history has come into office with as vast and complex financial holdings. Modern presidents have bypassed all of this by using blind trusts, something Trump has said he will not do. This is clearly uncharted legal and political territory.
That said, it appears use of the Emoluments Clause to impeach Trump is another Clinton martyrdom political fantasy. Any clarification will involve extensive travel through the court system, and given the initial question of who even has standing to pursue that, nothing can happen quickly, if at all.
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. His next book is Hooper’s War: A Novel of WWII Japan.