Email #202: Foreign Emoluments Clause?

There are now three lawsuits filed against President Trump for allegedly violating the Constitution’s foreign emoluments clause.

The Constitution states: “no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” According to Citizens for Responsibility and Ethics in Washington, which filed its suit in January, and to the attorney generals of DC and Maryland, who filed their suit this month, as well as to the 196 members of Congress who filed in the same week, payments to Trump businesses by foreign dignitaries and state-owned businesses are emoluments that violate the clause.

In response to the first lawsuit, the Justice Department issued a brief arguing that the clause only applies to “a payment or other benefit received as a consequence of discharging the duties of an office.” So “emoluments” can only be overt bribes. If true, there’s nothing unconstitutional about foreign dignitaries indirectly paying the President to stay in a hotel that he owns, a practice some diplomats now follow because, they reason, “spending money at Trump’s hotel is an easy, friendly gesture to the new president.” If the brief is true, the emoluments clause would also not bar China’s state-owned Chinese from continuing to loan the President millions of dollars.

But it is not clear whether this interpretation is accurate. There is a variety of evidence that the Justice Department’s new definition does not match the definition used during the historical period in which the Constitution was written or even the meaning the framers specifically intended. Justice Kennedy’s former clerk Joshua Matz and Harvard Law School professor Laurence H. Tribe argue convincingly that the Justice Department’s brief is incorrect. Have you read their “President Trump Has No Defense Under the Foreign Emoluments Clause”? I am no lawyer, so it would be helpful to me and the vast majority of your constituents if you would explain in a balanced, non-partisan manner the merits of their argument.

More importantly, since your House Judiciary Committee oversees the Justice Department, have you reviewed and responded to their memorandum defending the President?  Again, while I am no lawyer, I am struck by for the unfortunate logic of one point especially:

“Plaintiffs challenge everything from a single diplomat’s payment for hospitality services to any trademarks, permits, licenses, and approvals that may be granted by foreign governments in connection with the commercial activities of the President’s business organization in numerous countries. Any relief directed at those activities would ensnare the President in prolonged litigation over any number of transactions, “distract[ing] [the President] from his constitutional responsibility to ‘take Care that the Laws be faithfully executed,’”

This would seem to be a compelling argument for why the President should either divest from all of his businesses or to place them all in a blind trust. I do not know if the President is violating the emoluments clause, but I do know that his multi-billion-dollar network of businesses is a major distraction from his constitutional responsibilities.

I also know you more than all other members of Congress should be vigilantly and nonpartisanly overseeing both the President and the Justice Department. I would like to believe that you are. But your unwillingness to speak to some of the most pressing issues created by the President’s problematic actions suggests otherwise.

When history looks back at the Trump Presidency, you will be listed among the members of his party who failed to recognize and address his most damaging failings.

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Author: Chris Gavaler

Chris Gavaler is an assistant professor of English at Washington and Lee University where he teaches creative writing, contemporary fiction, and comics. He has published two novels, Pretend I'm Not Here (HarperCollins 2002) and School For Tricksters (Southern Methodist University 2011), and two nonfictions, On the Origin of Superheroes (Iowa University 2015) and Superhero Comics (Bloomsbury forthcoming 2017).

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