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02/21/2017

David Post on the Emoluments Clause and President Trump's Chinese Trademark
Michael Ramsey

At Volokh Conspiracy, David Post: Trump Conflicts Watch, 2: Where trademark law meets the foreign emoluments clause. From the introduction:

The Associated Press (along with Japan Times and the Voice of America’s China Service) reports that President Trump, “after suffering rejection after rejection in China’s courts,” has finally gotten something “that he has been trying to get from China for a decade: trademark rights to his own name.”

Is that an emolument? 

This Chinese trademark matter raises a different issue regarding the meaning of “emolument.” The Chinese government hasn’t engaged in a like-for-like market exchange with Trump; rather, it has conferred a legal benefit that has some, non-trivial value, on him. Is receiving trademark rights a constitutionally-prohibited “emolument … of any kind whatever … from a foreign State”?

I think it is. I’m even willing to give Trump the benefit of the doubt here, and to assume that everything that has taken place here is on the up-and-up and strictly by the book, i.e., that there’s been no quid pro quo, that this is simply a case where Trump received a benefit to which he (or anyone similarly situated) would be lawfully entitled under the relevant provisions of Chinese trademark law, and that it is simply a coincidence that, after a number of rejections, the application was approved after Trump was elected president of the United States.

...

 One clue to what [the emoluments clause] means comes from asking: What were the Founders concerned about? What’s the purpose of this clause (and its sister “domestic emoluments clause” in Art. I Sec. 7)? What’s the harm — a harm serious enough to include in the new Constitution? Why shouldn’t Jefferson be allowed to take a nice snuff box from the French king?

The answer, as Hamilton put it, is that the receipt of the gift would “weaken his fortitude [and] corrupt his integrity by appealing to his avarice,” giving him a “pecuniary inducement to renounce or desert the independence intended for him by the Constitution.” Men are avaricious; give them a nice snuff box and they’ll be more likely to treat you with special favor down the road, perhaps out of a desire not to show ingratitude, perhaps out of a desire to obtain additional valuable gifts, perhaps both. In either case, dealing with the foreign sovereign will be compromised, no longer having the interests of the people of the United States as the sole motivating factor in all decisions and actions. ...

(For a seemingly different view, see Rob Natelson here).