Three days after President Trump was inaugurated, the Washington Post ran a lengthy piece on the so-called emoluments clause to the Constitution. At issue was whether or not President Trump would divest himself from his businesses so that foreign powers could not seek favor with him by playing at his golf courses or staying at his hotels. Here’s how they explained the issue:
1. What, exactly, is the Emoluments Clause?
It is 49 words in 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.”
In this instance, the words that matter most are the ones we have placed in italics.
According to legal scholars, these words were added out of a concern from the 1700s that American ambassadors, on the far side of the ocean, might be corrupted by gifts from rich European powers.
Benjamin Franklin, for instance, had accepted a snuffbox festooned with 408 diamonds from the King of France. John Jay accepted a horse from the King of Spain.
After that, the Emoluments Clause rarely came up again. It’s never been the subject of a major court case and never been taken up by the Supreme Court, leaving great uncertainty about what it means — and to whom, exactly, it applies — in the 21st century.
Of course, Trump agreed to have his sons take over the day-to-day management of his businesses, but he refused to divest from them. This led very predictably to a lawsuit. Last Wednesday, a federal judge ruled that a case charging Trump with violating the emoluments clause could go forward.
There’s actually a domestic emoluments clause in the Constitution that isn’t mentioned in that Washington Post article:
The Foreign Emoluments Clause — specifically, Article I, Section 9, Clause 8 of the Constitution — declares that “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.” The Domestic Emoluments Clause — Article II, Section 1, Clause 7 — states that “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”
This should make clear that a condition of being president was that opportunities for personal enrichment would have to be put aside. The president was to receive a defined level of compensation for the duration of his terms in office, and was not to receive things of value on the side from the federal government, the state governments or any kings, princes or officers of foreign governments.
Now, watch carefully:
The general manager of the Trump International Hotel in Manhattan had a rare bit of good news to report to investors this spring: After two years of decline, revenue from room rentals went up 13 percent in the first three months of 2018.
What caused the uptick at President Trump’s flagship hotel in New York? One major factor: “a last-minute visit to New York by the Crown Prince of Saudi Arabia,” wrote general manager Prince A. Sanders in a May 15 letter, which was obtained by The Washington Post.
Neither Crown Prince Mohammed bin Salman nor members of the royal family stayed at Trump’s hotel, Sanders said: He said the Trump hotel didn’t have suites big enough to accommodate them. But “due to our close industry relationships,” he wrote, “we were able to accommodate many of the accompanying travelers.”
Because the Crown Prince of Saudi Arabia travels with such a large entourage, the Trump International Hotel in Manhattan actually made a killing on this trip. It actually may have made the difference between showing a profit and a loss in the first quarter of this year. In other words, a “Prince” of a “foreign state” provided an emolument to President Trump. This is explicitly banned by the Constitution. Visiting foreign dignitaries understand that putting money into Trump properties will make the president more inclined to hear them favorably, and giving the same money to his competitors will have the opposite effect.
The way to avoid these kinds of behaviors is to eliminate the conflict of interest, and that is why people called on Trump to unwind his hospitality businesses (at a minimum) if he wanted to serve as president.
If someone wants to argue that these clauses should not be in the Constitution, that’s fine. I have some clauses I’d like to see stricken from the Constitution, too. But as long as they are present and in force, they should be obeyed and punishment should follow if they are not.