January 24, 2017

Private: President Trump Has No Defense Under the Foreign Emoluments Clause

Donald Trump, Emoluments Clause, Joshua Matz, Laurence H. Tribe

by Joshua Matz, former law clerk to Justice Anthony M. Kennedy of the United States Supreme Court, and Laurence H. Tribe, Carl M. Loeb University Professor at Harvard Law School

Until recently, you probably did not know (or care) what an “emolument” is. Many people, including many lawyers, had never heard that archaic term before. Those were the good old days. Now, thanks to President Donald J. Trump, the word “emolument” is all the rage. Need proof?  Last week, it topped the charts on Merriam-Webster.com. 

As far as words go, that is a big deal. 

This newfound popular interest reflects an emerging consensus that Trump is violating the Constitution’s foreign emoluments clause. That clause bars any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” (absent congressional consent). As Trump’s lawyers have acknowledged (and rightly so), the president holds an “Office of Profit or Trust” and is subject to this restriction.

The nature of Trump’s violation is straightforward: Because of his ownership stake in the Trump Organization, Trump’s private financial interests are intertwined with a business empire subject to many possible burdens and benefits abroad. None of Trump’s “solutions” fixes this problem.  As a result, in his dealings with foreign powers, Trump may be guided not only by the interests of the United States, but also by those of the business that bears his name—unless he totally stops caring about his money (we are not holding our breath). It is the purpose of the foreign emoluments clause to eliminate precisely this kind of blurred loyalty.

At stake here is more than the abstract principle that the president, above all other officials, must have only the interest of “We the People” at heart in his decisions. One can criticize the terrifying implications of Trump’s “America First” slogan while still recognizing the concrete value of ensuring that nothing distracts the president from undivided devotion to the interests of the United States. Workers and consumers, for example, count on such loyalty whenever the president negotiates trade deals with foreign powers. Soldiers place their lives in the president’s hands and trust that he will send them into danger only for the greater good of the nation.

When the president orders his affairs such that foreign powers can seek influence through his private bank account, he betrays our collective trust. Now all Americans must worry that foreign emoluments extended to the president will translate into American jobs being shipped overseas or American consumers being stiffed. Our soldiers must worry that they may be deployed abroad because the president’s personal attachment to (and private investment in) Trump-branded properties will result in otherwise-avoidable conflagrations. 

Notwithstanding the clarity of these conflicts, Trump’s lawyers at Morgan Lewis have recently sought to justify his obviously improper position. They do so by reading the foreign emoluments clause through a distorted lens that obscures its text, history and purpose.  

In this short essay we provide a full constitutional analysis of the white paper’s many and fundamental errors. 

As our essay explains in detail, no method of constitutional interpretation supports the artificial, absurd and unworkable limitations that Trump’s legal team has manufactured to muzzle the foreign emoluments clause. 

If that is really the best defense of Trump’s unprecedented position, then all it proves is the clarity of Trump’s constitutional violation.