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07/15/2017

Seth Barrett Tillman and Josh Blackman on the President and Emoluments
Michael Ramsey

In the New York Times, Seth Barrett Tillman and Josh Blackman: Yes, Trump Can Accept Gifts.  Key point:

The Foreign Emoluments Clause requires those who hold an office of profit or trust under the United States to seek congressional approval before accepting gifts from foreign states. As understood at the time of the framing, only appointed officers hold such positions. In contrast, elected officials do not hold office under the United States, and thus the president is not bound by the clause. If new constraints are to be imposed on the president, they should come from the electorate and Congress, not from the judiciary.

The framers of our Constitution gave the president important authority over foreign affairs, including the power to nominate ambassadors, negotiate treaties and receive foreign ambassadors. From the earliest days of the Republic, other nations sought to reciprocate their appreciation by giving presents to the American chief magistrate. ...

And in conclusion:

The Constitution offers several remedies for a president’s improper foreign entanglements. Congress can regulate, by statute, the receipt of presents from other nations or require the president to make disclosures about his foreign commercial arrangements. Of course, as a last resort, the president can be impeached and removed from office for bribery. However, the Foreign Emoluments Clause can provide no redress in relation to a president’s foreign entanglements either in the courts or through the impeachment process, for the simple reason that the clause does not cover the president or any other elected officials.