More on President Trump and the Foreign Emoluments Clause
In The Guardian, Laurence Tribe argues: Donald Trump will violate the US constitution on inauguration day. Key claim:
The US constitution flatly prohibits 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”.
Known as the emoluments clause, this provision was designed on the theory that a federal officeholder who receives something of value from a foreign power can be tempted to compromise what the constitution insists be his exclusive loyalty: the best interest of the United States. The clause applies to the president and covers even ordinary, fair market value transactions with foreign states and their agents that result in any profit or benefit. That a hostile government has gotten its money’s worth from our president is obviously no defense to a charge that he has abused his office.
Maybe. But it seems to me that all this essay does (at least for an originalist) is to set up the issues, not to resolve them. Professor Tribe makes two key steps: (1) the clause applies to the President, and (2) the clause applies to "ordinary, fair market value transactions." He offers no argument at all on (1), and his argument on (2) -- that apparently as a matter of common sense, doing business in an arms' length manner isn't a defense to a charge of abuse of office -- seems less obvious than he thinks it is.
As to point (1), as readers of this blog know, Seth Barrett Tillman has a strong argument that the clause does not apply to the President, based on text and early post-ratification practice. If you think he is wrong, you need to explain why. As to point (2), as I have argued earlier, the modern meaning of emoluments appears not to refer to ordinary transactions, but only to salaries and benefits for employment. There's evidence that it had a broader meaning in the founding era, but this is the sort of thing that must be demonstrated by evidence of founding-era usage and assumptions, not merely declared on the basis of what might appear to be modern common sense.
On a related point, Professor Tribe continues for another 13 paragraphs (including a discussion of congressional remedies) without considering the proposition (expressly in the Constitution's text) that Congress can consent to any potential emolument Trump might receive. How can that consent be shown? As a formalist (and a strict reader of Article I, Section 7), I'm inclined to say that Congress must pass a formal resolution of approval. But many people (perhaps including Professor Tribe) are not formalists nor strict readers of Article I, Section 7. For example, it's been argued that Congress can acquiesce in the President's exercise of certain powers by failing to object (Dames & Moore v. Regan) or through appropriations (presidential war-initiation). If Congress does not object to Trump's business dealings and works with Trump on the understanding that he is acting constitutionally in taking office without divesting his businesses, why isn't that enough to show Congress' consent? It seems necessary at least to consider this point (and to consider whether, in addressing other constitutional controversies, one has taken the position that Congress can consent informally).
Finally, if Congress wanted to signal some interest in asserting its constitutional prerogatives without taking much risk, what about this: it should pass a resolution of consent to the Trump family's continued business dealings, provided that Trump does not play an active role in the businesses and that dealings are conducted on an arms' length basis. Since Trump has said that's what he intends to do, he would not have much basis to object.
(Thanks to Michael Perry for the pointer).
UPDATE: At the New Reform Club, Seth Barrett Tillman has this post on the other emoluments clause: The Presidential Compensation Clause & Trump’s “No New Deals” Motto.
Also, Professor Tillman points out this 1974 memo in which future-Justice Scalia (as assistant attorney general) concludes: “[W]hen the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.”