Trump and the Emolument Clause

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Trump Maladministration

McClatchy reports today:

A major construction company owned by the Chinese government was hired to work on the latest Trump golf club development in Dubai despite a pledge from Donald Trump that his family business would not engage in any transactions with foreign government entities while he serves as president. …

… The companies’ statements do not detail the exact timing of the contract except to note it was sometime in the first two months of 2017, just as Trump was inaugurated and questions were raised about a slew of potential conflicts of interest between his presidency and his vast real estate empire.

Now, let us consider the emolument clause of the U.S. Constitution — Article I, Section 9, paragraph 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.

Is Trump in violation of the emolument clause? Peter Overby recently reported on NPR:

Citizens For Responsibility and Ethics in Washington, or CREW, sued President Trump three days after he took office, saying he is “submerged in conflicts of interest” because of foreign governments’ spending at the D.C. hotel.

The Constitution doesn’t ban foreign emoluments outright. It empowers Congress to approve them or not, and lawmakers have passed judgment on foreign gifts to lesser officials for more than 200 years.

Trump could agree that the hotel spending amounts to emoluments, and ask for congressional consent. But last January his lawyer, Sherri Dillon, said he doesn’t have to.

“No one would have thought, when the Constitution was written, that paying your hotel bill was an emolument,” she said at a press conference. “Instead, it would have been thought of as a value-for-value exchange. Not a gift. Not a title. And not an emolument.”

The Justice Department agrees, arguing in the CREW case that the hotel transactions are business transactions, unrelated to the president’s office, and thus not emoluments.

However, the Constitution is an 18th century document, and the language has changed. So what did emoluments mean in the 18th century? John Mikhail, a professor at Georgetown Law School, investigates.

Mikhail told NPR he and his researchers looked at all the known dictionaries between 1604 and 1806 that define emolument — 40 books in all. He said only three gave definitions in ways favorable to Trump, “kind of a narrow, even technical meaning, tied to the salary or official duties of an office,” while the other 37 used “a broader meaning that would encompass sort of the profits of ordinary market transactions.”

Almost all of the dictionaries used the word profit in their definitions. The two other go-to words were advantage and gain.

In the CREW case, the Justice Department cites two dictionaries that also used the words office and employ. “They had selected, maybe cherry-picked even, a couple of dictionary definitions,” Mikhail said.

An online search of Founding Fathers’ papers at the Library of Congress failed to produce any indication the Constitution’s Framers had consulted either of those dictionaries, he added.

Sen. Richard Blumenthal (D-CT) has accused Trump of violating the emoluments clause more than 20 times, and that was before today’s McClatchy report.

Blumenthal said Trump “has never sought the consent of Congress” for the profits from deals in the more than 20 countries where he has business operations.

Just one example he offered: Trump has sought — and obtained — valuable trademarks from China’s government but did not clear those transactions with Congress.

Today’s example might or might not fit; back to McClatchy —

Trump’s partner, DAMAC Properties, awarded a $32-million contract to the Middle East subsidiary of China State Construction Engineering Corporation to build a six-lane road as part of the residential piece of the Trump World Golf Club Dubai project called Akoya Oxygen, according to news releases released by both companies. It is scheduled to open next year. …

… Meredith McGehee, chief of policy, programs and strategy at Issue One, which works to reduce the role of money in politics, said doing business with a foreign entity poses several potential problems for a president, including accusations that a foreign government is enriching him, gaining access to or building goodwill with him and becoming a factor in foreign policy.

The Trump Organization agreed to not engage in any new foreign deals or new transactions with a foreign entity — country, agency or official — other than “normal and customary arrangements” made before his election.

The China State Construction Engineering Corporation is not just a Chinese-based company; the government of China is the principal owner.  McClatchy also notes that CSCEC appears in the Panama Papers.

Meredith McGehee, chief of policy, programs and strategy at Issue One, which works to reduce the role of money in politics, said doing business with a foreign entity poses several potential problems for a president, including accusations that a foreign government is enriching him, gaining access to or building goodwill with him and becoming a factor in foreign policy.

The Trump Organization agreed to not engage in any new foreign deals or new transactions with a foreign entity — country, agency or official — other than “normal and customary arrangements” made before his election.

But Trump ignored calls to fully separate from his business interests when he became president. Instead, he placed his holdings in a trust designed to hold assets for his “exclusive benefit,” which he can receive at any time. He retains the authority to revoke the trust.

McGehee said Trump clearly knew foreign arrangements could be problematic because he outlined a list of restrictions, although vague ones, for his company to follow while he served as president. But more importantly, she said, the writers of the U.S. Constitution knew they could be too.

The Emoluments Clause in the U.S. Constitution says officials may not accept gifts, titles of nobility or emoluments from foreign governments with respect to their office, and that no benefit should be derived by holding office.

Back to NPR:

But going back to the word in question: “It’s clear in the 1780s this was a very broad term, understood by most people,” Peter Sokolowski, a lexicographer at the dictionary publisher Merriam Webster, told NPR. “As often happens, the definition that is the broader one, which happens to be the one that was in most common use in the 18th century, is the one that has sort of fallen away.”

Cato Institute senior fellow Walter Olson said in an interview that Congress may have the final say on the definition. “At that point, the mood that Congress has, whether it is mad at the president or indulgent toward him, is going to make a lot of difference.”

In other words, if they ever do get in the mood to impeach him, they’ve got a ready-made issue close at hand.

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5 Comments

5 Comments

  1. LongHairedWeirdo  •  Sep 11, 2017 @7:57 pm

    Trump is a perfect test case for saying that Presidents must use a blind trust. Right now, he can be bribed, easily, and untraceably, just by having people throw business his way, instead of another way. The argument put forth, “it’s not an emolument! We’ve *laundered* it through a *business*” is… well, I’m sure my restatement of the argument gives you a sense of *my* opinion.

    This is one of the many ways in which crazy crap happens in full daylight and people end up having to figure that it must be semi-kinda-okay, because isn’t someone watching out for this? Wouldn’t we hear about it?

    And the answer is “no”. Congress could pass legislation or run investigations, etc., but they won’t, because they’re more party-bound than duty-bound.

  2. paradoctor  •  Sep 11, 2017 @7:59 pm

    They’ve had the Emoluments clause on hand since day one.

  3. c u n d gulag  •  Sep 11, 2017 @11:03 pm

    Years ago, I figured out that when I tried to parse words, I was trying to justify for/to myself (and others) some way(s) to get around some intended or stated meaning(s) in a rule or law.
    Kind of the way children do when they’re trying to buck their parent’s.

    Growing up, and tryng to become a (somewhat) responsible adult, I stopped doing that.

    t-RUMPLE-THIN-sKKKin?
    Not so much.
    He will always remain the endlessly needy, rebellious child.

  4. elkern  •  Sep 12, 2017 @9:10 am

    Coming soon, near you! New Don Boi Chinese Laundry!

    (for younger readers here, “Chinese Laundry” shops used to be a thing – and, yes, it’s a Stereotype, and I’m kinda embarrassed to still think it’s funny.)

  5. bernie  •  Sep 12, 2017 @1:02 pm

    This is plain an simple a case of untouchability.  IOKIYAR has been codified.  If the judicial system fails the code, and your get  convicted, you might expect a pardon.  The judicial system most people recognize is one extremely biased toward the rich and connected.  Was it not as a candidate Trump boldly stated, something to the effect of I could shoot someone in broad daylight and get away with it.  Constitution, laws, regulations, propriety, manners, all belong to the lower classes.  None of this applies to the untouchable class.  

    If you find this revolting so do I.  As long as it even approaches the truth, or the perception of any significant portion of the people of this county, this notion must be changed.  Unequal justice is a given.  Unequal justice at this level is a travesty.



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