Emolument or Emolient? Does the Constitution prohibit financial conflicts of interest by the President of the United States?

One of the timely the questions working its way through the federal district courts in Manhattan and the District of Columbia is whether Donald Trump’s apparent conflicts of interest in his and his family’s ongoing involvement in the Trump International Hotel in Washington DC and other golf course and real estate development ventures implicates the Emoluments Clause of the United States Constitution (Article I, Sec. 9, Cl. 8), which provides that “no Person holding any Office or Trust under [the United States], shall, without the Consent of Congress, accept any present, Emolument, Office, or Title of any kind whatsoever, from any King, Prince or foreign State.”  The plaintiffs in the Manhattan case are three competitors in the hotel and restaurant business and a public interest group, Citizens for Responsibility and Ethics in Washington (“CREW”).  The plaintiffs in the District of Columbia case are the District, itself, and the State of Maryland.

No case heard in the United States Supreme Court has yet interpreted the range and applicability of the Emoluments Clause Never before have we had a President who, during his term of office, so cavalierly flaunted the Clause’s applicability to him, while he publicly and privately basks in the glow of the lucrative enhancement of his private business ventures generated by his unexpected rise to public office.

In 1923, when “Henry Ford for President” clubs were popping up around the country and Ford was leading a disgraced Warren G. Harding in popular presidental prefernce polls, before the 1924 presidential election, a number of press and magazine editorials raised concerns that because of the wide Ford name recognition, almost any public action he would take as President of United States would, to some extent, have a significant impact on sales in the Ford Motor Company and that it would be difficult to determine whether or not his public actions would be driven more by public or private interests. President Harding’s unexpected death in office and Calvin Coolidge’s political savvy avoided a confrontation over the issue as Ford withdrew himself from the race.

There are those defenders of Mr. Trump, who suggest that the Emoluments Clause was originally intended only to apply to appointed, not elected,”Officers.” In 1974, a U.S. Department of Justice opinion written by then, Assistant Attorney General Antoine Scalia, suggested this argument. Trump Defenders point to George Washington’s acceptance of gifts from the French government during his term of office to fortify this view. They also argue that the commercial sale of President Obama’s books during his presidency is legally comparable Saudi  room payments at the Trump International Hotel and other investments.

The Oxford English Dictionarydefines “emolument” as a ‘profit or gain rising from station, office, or employment; reward, review remuneration, salary.” The Justice Department has occasionally reviewed proposed gift transactions for potential conflicts with the Emolument’s Clause and routinely and cleanly focused its analysis in specific cases on the particular gain’s potential for corruption and undue foreign influence by the donee. It determined that President Obama’s acceptance of the Nobel Peace Prize in 2009, was not a violation of the clause largely due to the limited involvement of the Norwegian Storting, in the recipient selection process. There would seem to be a categorically distinguishing level of danger in the potential public corruption impact by a person from a foreign government purchasing a copy of Mr. Obama’s books in a bookstore from say Saudi Arabian government representatives purchasing hundreds of rooms at the Trump International Hotel and high-end condos at the Trump Tower in New York.

Was Mr. Trump’s obsequious behavior toward Vladimer Putin in Helsinki, the result of thoughtful American foreign policy or the President’s past and potential future interest in developing the Trump tower in Moscow? Was Mr. Trump’s blind eye to the merger and dismemberment of Mr. Khashoggi, in fact, a focused eye on his past, present and future financial ties to Saudi Arabia?  Was the President’s spontaneous announcement of the withdrawal of American troops from Syria, over senior military objections that the job in syria is unfinished and our Kurdish allies are being fatefully and inhumanely abandoned to the avowed and deadly hostility of Recep Tayyrip Erdogan, the result of the President Trump’s pursuit of Trump business dealings in Turkey? These are only a few of the many known, existing, apparent conflicts of interest about which our Nation should not be left adrift.

It would be surprising if the Supreme Court would construe the Emoluments Clause as an empty impediment to the President’s conflicts of interest and his acceptance of financial inducements from foreign governments, but the real court battle will likely be over whether the states, or private citizens, even those with a grievance as competitors, have legal “standing” to sue for redress under Article III of the Constitution, where the Congress itself has refused or failed to act. “Standing” or locus standiis the ability of a party to demonstrate to the court that the party has sufficient connections to a harm from a law or action being challenged to support a that party’s participation in the case. Standing remains the President’s first line of defense in the review pending and the reconsidered motions to dismiss. Standing can be determined in the eye of the beholder and the ultimate beholder will be Mr. Trump’s Supreme Court.


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