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01/03/2017

David Weisberg on President Trump and Foreign Emoluments
Michael Ramsey

David E. Weisberg (independent) has posted The Foreign Emoluments Clause: Will Pres. Trump Be in Violation by Virtue of Taking the Oath? on SSRN.  Here is the abstract:      

The Foreign Emoluments Clause (Article I, Section 9 of the Constitution) provides that those holding federal office shall not accept “any present, emolument, office, or title, of any kind whatever, from any…foreign state.” It has been argued, most prominently and forcefully by Prof. Laurence H. Tribe, that a Pres. Trump, because of his far-flung business interests, would be in violation of the Clause merely by virtue of his taking the oath. This conclusion is incorrect, because it is bottomed on a mistaken understanding of the meaning of the word “emolument”. The income that would continue to flow to a Pres. Trump after he takes his oath of office will not arise from the office of, or his employment as, president, even if that income is from a foreign state. Therefore, that income cannot reasonably be said to be an emolument. Moreover, if one were to accept Prof. Tribe’s mistaken understanding of “emolument,” it would follow that Pres. Obama, since his own oath-taking, has been continually in violation of the Presidential Compensation Clause (Article II, Section 1).

(For other assessments of the foreign emoluments issue, see here from Rob Natelson and here from Seth Barrett Tillman.  And to repeat my view:  "if Congress wanted to signal some interest in asserting its constitutional prerogatives without taking much risk  ... 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.")