An organization of top American legal scholars (including former White House lawyers) filed a lawsuit against US president Donald Trump on Monday, January 23, claiming the freshly inaugurated head of state has already violated the Constitution by allowing representatives of foreign governments to pay for accommodations in Trump International hotels.
The group, Citizens for Responsibility and Ethics in Washington (“CREW”) has built its suit around an interpretation of a constitutional provision known as the Emoluments Clause, which forbids the president of the United States from accepting gifts or benefits from foreign governments (or the individual governments of the 50 states) without legislative approval. “Since Trump refused to divest from his businesses, he is now getting cash and favors from foreign governments, through guests and events at his hotels, leases in his buildings, and valuable real estate deals abroad,” a statement published by CREW reads.
Its not a concern totally without basis. In December 2016, ThinkProgress’s John Legum reported that, responding to alleged pressure from within the Trump campaign, the Kuwaiti embassy to the US canceled a reservation to host an event at the Four Seasons in DC and rebooked with the Trump International Hotel Washington. Kuwaiti ambassador Salem al-Sabah has denied the validity of the report, according to Politico, claiming he opted to relocate Kuwait’s National Day festivities to the Trump International “because he’d heard good reviews about it and thought that it would draw more guests.”
Regardless of the true motivations behind the embassy’s last-minute location change, Trump’s global hospitality empire still raises concerns for constitutional scholars, who have grappled with the precise function of the Emoluments Clause since its 18th-century drafting, often boiling down to the definition of the word itself. As it turns out, “emolument” is one of the most slippery words in the Constitution.
Is any gift or benefit conferred upon the president automatically an emolument? Or does the motive behind the gift need to be taken into account?
In 1981, lawyers for the White House Office of Legal Counsel (OLC) drafted a memo attempting to pin the definition down. The provoking issue? Whether president Ronald Reagan would be in violation of the Emoluments Clause by receiving retirement benefits from his tenure as governor of California. The memo writers concluded (citing precedent case law and not the text of the Constitution itself) that money conferred on the president by a foreign or state government only constitutes an emolument where such a payment is incident to his current office—that is, did he receive the payment or gift because he was president, or would he have received it regardless of holding office?
As a former governor of California, Reagan, like millions of other California public servants, would receive his retirement benefits regardless of whether or not Jimmy Carter was reelected in 1980. Verdict? Not an emolument.
More recently, Department of Justice (DOJ) lawyers looked into whether Barack Obama’s winning of the Nobel Peace Prize in 2009 was a violation of the Emoluments Clause, being conferred by the Swedish Nobel Foundation. Despite the fact that the prize consists of roughly $1.4 million, a certificate, and a gold medal, the DOJ concluded that acceptance of the prize was not a violation of the Clause as the Nobel Foundation could not be shown to be an operation of the Swedish government. “The Nobel Committee that awards the Peace Prize is not a ‘King, Prince, or foreign State,’” the DOJ said, citing the very text of the Emoluments Clause—allegedly inspired by Benjamin Franklin’s acceptance of a bejeweled snuff box from King Louis XVI of France. (It was reportedly encrusted with over 400 tiny diamonds.)
So the nature and the source of the payment or gift matter.
Zephyr Teachout, an associate professor of law at Fordham University School of Law and an attorney assigned to the CREW case, believes the text of the Constitution offers a pretty thorough understanding of what emoluments are. “Look to the language,” she tells Quartz:
“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.” – Article 1, § 9, Clause 8
“‘Any kind whatever.’ What is that extra language doing?” Teachout notes. “It tells you, if you had any doubt that it’s an emolument, it’s an emolument. The best way to read ‘emoluments’ is any kind of payment or benefit.”
CREW’s goal is simple, albeit lofty. To cure this alleged constitutional violation, it won’t be enough for the president to resign all corporate posts and place the Trump Organization in the hands of his two sons. “He needs to liquidate,” Teachout insists. “If, after he liquidates, a blind trust could work.” But without liquidation, president Trump continues to accrue benefits from his hotels which may easily be exploited by foreign interests.
The problem presents itself where a foreign diplomat or head of state may book a stay at the Trump International Hotel Washington without first checking with White House staff. The motivations for this might be various, but it takes no stretch of the imagination to surmise that a foreign dignitary may do so in order to ingratiate himself with the president, hoping for subsequently favorable treatment of his nation’s affairs.
“When you want to understand what emoluments are, you look at the text, the history, and the purpose,” Teachout explains. “You have the word emoluments and how it was used when the Framers wrote the Constitution. You have the history of how courts have interpreted it as a strict understanding of what a benefit is. And perhaps most important, you have its purpose—you don’t want a foreign power having influence over an American president.”
Some of president Trump’s lawyers with the firm Morgan Lewis issued a memo purporting to cure the emoluments issue, claiming a president may sidestep the Clause if the offending business affairs are in fact fair-market exchanges that do not arise out of his newly acquired office. There is, of course, virtually no way to prove this is not the reason foreign dignitaries may book rooms or dine at the Trump.
“This is why we have strong prophylactic rules like the Emoluments Clause,” Teachout says, “you can’t leave it up to the person who’s receiving the gifts to decide what they’re influenced by. This is a very basic to anti-corruption law.”