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02/13/2017

John Mikhail on Emoluments
Michael Ramsey

I missed this post from last month at Balkinization (even though it links to one of mine) -- John Mikhail (Georgetown): A Note on the Original Meaning of "Emolument".  Central point:

Although these passages [from The Federalist] cited by President Trump's lawyers] clearly indicate that “emolument” was sometimes used to refer to salary or other benefits associated with discharging the duties of an office, that finding is insufficient to prove the precise point at issue, at least as it is framed by Trump's lawyers.  That question is not whether “emolument” could have been used in this restricted fashion, but whether it must have been -- whether, in other words, "salary or benefits associated with an office" was somehow built into the very definition or semantic content of "emolument" at the time.  

None of the foregoing passages, however, entails or even strongly implies that the original meaning of “emolument” must necessarily exclude a wider category of payments or benefits, which might cause the Trump Organization’s businesses to violate the Foreign Emoluments Clause.  Furthermore, there is ample evidence that “emolument” was often used at the founding in a much wider sense, one that went beyond the duties of an office and encompassed the fruits of ordinary market transactions.

This conclusion is in some tension with this article by Rob Natelson, noted here.

(Via Larry Solum at Legal Theory Blog).