Article I, Section 9, Clause 8 of the Constitution, also known as the Emoluments Clause, states –

“[N]o 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.”

By virtue of President-Elect Trump’s continued interest in the Trump Organization and its subsidiaries there is a concern that the monetary and other benefits he could receive from foreign governments and their agents could run afoul of the Constitution’s Emoluments Clause.

There is currently a debate over whether the Emolument Clause applies to the President. I thought it might be useful for readers of this blog to present a summary of the opposing viewpoints.

Argument 1: The Emoluments Clause Applies to the President

There is no doubt that the Founders were concerned about foreign corruption. In Federalist No. 22, Alexander Hamilton wrote: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”

As Fordham Law Professor Zephyr Teachout explains in a recent New York Times op-ed this concern was raised during the Constitutional Convention –

At the Constitutional Convention, Alexander Hamilton warned, ‘Foreign powers … will interpose, the confusion will increase, and a dissolution of the union ensue.’ The delegate Elbridge Gerry said, ‘Foreign powers will intermeddle in our affairs, and spare no expense to influence them …. Every one knows the vast sums laid out in Europe for secret services.’

As explained in the Heritage Guide to the Constitution –

The delegates at the Constitutional Convention specifically designed the [Emoluments] clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from…[a] foreign State.”

With this background in mind, the question becomes – to whom does the clause apply?

Scholars Norman Eisen, Richard Painter, and Laurence Tribe argue in a Brookings Institution report that the Emoluments Clause was not “exclusively, or even mainly relevant to diplomats [alone].” To support their assertion that the Clause also applies to the President, they look to a statement made by Edmund Randolph (who would go on to serve as the nation’s first attorney general) in the Virginia Ratifying Convention. There he said –

There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeachable he may be displaced at the end of the four years . . . I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.

Teachout in her article also cites two examples where presidents sought congressional consent before receiving foreign gifts –

In 1840, when President Martin Van Buren was offered horses, pearls, a Persian rug, shawls and a sword by Ahmet Ben Haman, the Imam of Muscat, Van Buren got a joint resolution of Congress authorizing him to split the bounty between the Department of State and the Treasury. When President John Tyler was given two horses from a foreign power, Congress had him auction them off and give the proceeds to the Treasury.

Argument 2: The Emoluments Clause Does Not Apply to the President

Scholar Seth Barrett Tillman has laid out the argument on the other side. In a recent New York Times piece he explains –

There are three good reasons to believe that the [Emoluments Clause] does not [apply to the President].

First, the Constitution does not rely on generalized “office” language to refer to the president and vice president. Where a provision is meant to apply to such apex or elected officials, the provision expressly names those officials. For example, the Impeachment Clause applies to the “president, vice president and all civil officers of the United States…”

Second, the Foreign Gifts Clause was given an early construction by George Washington. While he was president, Washington received two gifts from officials of the French government — including a diplomatic gift from the French ambassador. Washington accepted the gifts, he kept the gifts, and he never asked for or received congressional consent. There is no record of any anti-administration congressman or senator criticizing the president’s conduct. As Professor Akhil Amar has reminded us, the precedents set by President Washington and his administration deserve special deference in regard to both foreign affairs and presidential etiquette.

Finally, in 1792, again during the Washington administration, the Senate ordered Secretary of the Treasury Alexander Hamilton to supply a list of persons holding office under the United States and their salaries. Hamilton’s 90-page responsive list included appointed officers in each of the three branches, but did not include any elected officials in any branch. In other words, officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States. Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.