Back in June, I explained that even under the definition of “emolument” that the Department of Justice offered in its opening brief seeking dismissal of CREW, et al. v. Trump, the President has violated the Foreign Emoluments Clause (FEC) if the allegations in the complaint are taken as true (which they must be on a motion to dismiss).
Late last night, DOJ filed its reply brief, in which it quietly abandons--or substantially supplements, anyway--the definition it offered in its opening brief, in an obvious effort to avoid that unwelcome conclusion. Its new definition of “emolument,” however, is based upon no authority at all, leads to absurd results, deviates sharply from the mode of analysis that the Department of Justice itself has long used when applying the FEC, and has little, if anything, to recommend it as a matter of constitutional interpretation.
1. The Foreign Emoluments Clause provides that “no person holding any office of profit or trust under [the United States] 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.” In support of its argument that President Trump has not received any forbidden “emoluments,” DOJ’s opening brief relied primarily upon a very selective (some might say cherry-picked) definition found in a couple of Founding-era dictionaries. “[T]he term ‘Emolument’ in the Emoluments Clauses,” it argued, “should be interpreted to refer to a ‘profit arising from an office or employ’” (p.28, quoting Barclay’s A Complete and Universal English Dictionary on a New Plan (1774)). That is to say, according to DOJ's opening brief, an emolument is “the receipt of value for services rendered or for a position held” (p.29, emphasis added; see also id. (“compensation arising from that office”)).
But that presented a problem for DOJ, for even assuming that were the proper definition for purposes of the FEC, it actually describes two of the core allegations in the CREW complaint, as I explained in greater detail back in June.
First, the CREW plaintiffs allege that when Donald Trump was elected President, the Trump Organization exploited that fact by selling goods and services at a premium; in particular, it dramatically raised the rates for guest rooms at the Trump International Hotel in D.C. The complaint further alleges that the Trump Organization has “pitched the hotel” to scores of foreign diplomats; that some such foreign diplomats have indicated an intent to stay at the Hotel or hold events there in order to curry favor with the President; and that, at a minimum, the Kuwaiti embassy moved its “National Day” celebration to the Trump International Hotel from the Four Seasons Hotel, where the event had previously been held and at which a “save the date” reservation had been made before the election. If these allegations are true, Donald Trump is accepting profits from foreign states that “aris[e] from [his] office” as President—the touchstone for an FEC violation, on DOJ’s original view.
Second, the complaint alleges that although Trump had sought Chinese trademark protection for his name in connection with building construction services ever since 2006, China only granted that application, after several rejections, on February 14, 2017, five days after now-President Trump pledged to Chinese President Xi Jinping that he would preserve the United States’s longstanding “One China” policy. Again, if the Chinese granted the trademark because Trump was now U.S. President, as the complaint alleges, then Trump has accepted a financial benefit from a foreign state that “arises from” his new federal office.
Accordingly, if the complaint’s allegations are true, in each of these cases a foreign nation or official made payments or gave benefits to the Trump Organization because of his new federal office—and therefore, on DOJ’s opening-brief view, Trump’s acceptance of those profits and benefits violated the Foreign Emoluments Clause.
2. Faced with these implications of its original theory, DOJ has now pivoted to a new, much narrower definition of “emolument” in its reply brief. “[T]he term ‘Emolument’ in the Emoluments Clauses,” DOJ argues (p.2), “refers to profits arising from office or employ and the prohibited benefits must be tendered in exchange for the President’s service.” The first part of that formulation is merely a repetition of the dictionary definition upon which DOJ previously relied—“profits arising from office or employ.” But now DOJ has added yet a second condition—that the foreign actor also must tender those benefits “in exchange for the President’s service.” It’s clear from DOJ’s reply brief that this new condition would not be satisfied merely because the foreign actor hopes or expects that the President will perform a “service” in exchange for the payment: it is not enough, according to DOJ, that the “foreign or domestic government actor unilaterally sought to influence the President through a commercial transaction with the President’s businesses” (p.28, emphasis added).
Apparently, what would be necessary is an actual quid pro quo—an “emolument,” insists DOJ (p.3), “does not encompass benefits arising from the unilateral actions of foreign or domestic government actors”; “there must be plausible allegations that the official has personally provided a service or taken some official action in exchange for such payments.” (The reply brief makes the same argument as to the Domestic Emoluments Clause (p.29): “[U]nder the President’s theory, his mere receipt of benefits because of his status as President is insufficient to trigger the Domestic Emoluments Clause. There must be plausible allegations that the President has performed an official act in exchange.”)
What authority does DOJ cite in support of this new condition for an “emolument”? As far as I can tell, virtually nothing. As I mentioned above, DOJ’s earlier definition was derived directly from a highly selective use of a couple of 18th-century dictionaries. But of course, none of those dictionaries suggests a quid pro quo requirement, so DOJ can no longer rely upon them. Indeed, confronted with evidence that the vast corpus of contemporary dictionaries did not even support its earlier, office-related definition, DOJ now ridicules the use of such authorities as unreliable (p.20; citations omitted):
First, lexicographers of the time “could not and did not engage in a systematic attempt to discern all of the meanings of words.” Thus, founding-era dictionaries may not have recorded all meanings of the words listed. Second, Plaintiffs’ position fails to account for the possibility that dictionaries may have copied one another. Third, founding-era dictionaries also were generally more prescriptive about how language should be used, rather than descriptive of how it was actually used at the time.
DOJ does make a last-ditch effort to find support in one dictionary—the Oxford English Dictionary—claiming (p.21) that its first definition of “emolument” is “the President’s proposed definition.” But DOJ doesn’t actually quote the first OED definition, and for good reason: That definition reflects the DOJ view from its opening brief (“Profit or gain arising from station, office, or employment; dues; reward, remuneration, salary”), but tellingly does not include its new, essential condition of an “official act” as a quid pro quo for the profit or gain.
DOJ is thus relegated to relying upon only one purported “authority” for its new definition—the etymology of the word “emolument” reflected in some of the plaintiffs’ cited dictionaries (p.21): “[The term ‘emolument’ derives from the Latin ‘emolumentum,’” notes DOJ, “which was the combination of ‘mola,’ meaning ‘a mill,’ and ‘emolo,’ meaning ‘to grind thoroughly.’” This is not your ordinary, run-of-the-mill textual argument about constitutional meaning, to say the least. One might even say it’s half-baked.
3. Nor does DOJ’s new assertion of a presidential quid pro quo requirement make much functional sense, in light of the purposes and structure of the FEC. After all, that clause prohibits the acceptance of four different types of things—  a present,  an emolument,  an office,  or a title, “of any kind whatever, from any king, prince, or foreign state.” And no one would suggest that the prohibition is inapplicable in a case where the President does not “perform an official act in exchange” for a present, an office, or a title. So why should an “emolument” be any different?
The Framers formulated that four-part enumeration (and added “of any kind whatever”) in order to comprehensively describe an array of valuable things that might have a tendency to induce a federal officer to act in the interests of a foreign entity or leader rather than the American public. As then-Deputy Assistant Attorney General Samuel Alito wrote in a 1986 OLC opinion, the Foreign Emoluments Clause “is ‘directed against every kind of influence by foreign governments upon officers of the United States,’ (24 Op. Att’y Gen. 116, 117 (1902)), unless the payment has been expressly consented to by Congress.” As to at least three of the four types of listed conveyances—presents, offices and titles—the Clause presumes a dangerous potential for foreign influence on the officer’s decision-making, and thus prohibits the receipt even absent any showing that the President was, in fact, compromised (or did, in fact, render services to that foreign nation as part of an exchange). Why should the test be uniquely more demanding as to the second term of the four?
Imagine, for example, that a foreign head of state comes to the Oval Office and hands the President a check for $10,000—made out to the Trump International Hotel—to pay for a suite of rooms for its delegation, and says to the President: “We’ve historically stayed at the Four Seasons, but we're thrilled and honored to be able to spend a week at your most excellent establishment. Now, onto the business of state . . . .” On DOJ’s new view of “emolument,” as I understand it, the President would not violate the FEC if he accepted the check, unless and until he did something for the foreign state or foreign officials in return for their payment. That can’t be right.
[UPDATE: Indeed, as a friend reminds me, DOJ's new theory--requiring an "official act" by the recipient President in response to the payment--would in effect limit the prohibition on presidential acceptance of "emoluments" to cases of successful bribes, which would be fairly pointless, given that accepting a bribe in exchange for official acts would obviously be unconstitutional--indeed, grounds for impeachment--even absent the FEC.]
4. Which brings us to a more fundamental problem with DOJ’s submissions, one that I flagged in my earlier post: The Department has, without explanation, deviated sharply from its historical tradition of assessing FEC questions by applying a functional test. For example, a 1981 OLC opinion concluded, based primarily upon Framing-era history, that “the term emolument has a strong connotation of, if it is not indeed limited to, payments which have a potential of influencing or corrupting the integrity of the recipient” (emphasis added). See also Gifts from Foreign Prince—Officer—Constitutional Prohibition, 24 Op. Att’y Gen. 116, 117 (1902) (“It is evident from the brief comments on this provision, and the established practice in our diplomatic intercourse (2 Story on the Constitution, 4th ed., pp. 216, 217; 1 Wharton’s Int. Law Dig., sec. 110, p. 757), that its language has been viewed as particularly directed against every kind of influence by foreign governments upon officers of the United States, based on our historic policies as a nation.”) (emphasis added); and this amicus brief filed by former ethics officials.
Perhaps most striking, in this regard, was a 1986 OLC opinion written by then-Deputy Assistant Attorney General Samuel Alito, flagged by Jane Chong in her excellent Lawfare post. Alito reasoned that even if the financial support in question was tendered by a foreign entity other than a king, prince, or foreign state—the only sources mentioned in the constitutional text—it was necessary to inquire into the specific facts of the arrangement “to determine whether it would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition”! (quoting Edmund Randolph, the first U.S. Attorney General, at the Virginia ratification debate; emphasis added).
DOJ’s briefs do not even allude to this functional analysis, long employed by the Department—let alone make any effort to reconcile that traditional method with the quid pro quo requirement that the reply brief proposes.
5. In any event, the CREW plaintiffs do allege at least one actual quid pro quo—China’s conferral of a long-desired “Trump” trademark as a result of the President’s reaffirmation of the U.S.’s “One China” policy. (The President has not, of course, abandoned that policy after receiving the trademark, and the gist of plaintiff’s allegations is that China acted to help ensure he would not do so.) Notably, DOJ does not deny that Trump’s “acceptance” of the trademark would be an FEC violation, if the allegations were true. Instead, it simply takes issue with the alleged cause-and-effect, even as part of a motion to dismiss, where the allegations are supposed to be accepted for the sake of argument (p.28): “[T]he complaint sets forth no plausible allegation that China awarded trademark protections to the President in exchange for the President’s adherence to the United States’ longstanding ‘One-China’ policy. . . . Plaintiffs simply offer their own speculations about the Chinese government’s motive in granting the trademark protections. The Court should not permit a fishing expedition based on such speculations.”
6. Three quick observations on matters other than the question of what constitutes an “emolument”:
a. DOJ once again accepts the long-established view that the FEC applies to the President, notwithstanding the implausible argument of amicus Seth Barrett Tillman that it does not—an argument that has become something of a tempest in a thimble in certain quarters. As I wrote earlier, DOJ’s rejection of the Tillman argument
shouldn’t be too surprising—after all, that reading is consistent with the ordinary meaning of the words of the clause; it advances the purposes of the clause; it was the understanding expressed in the ratification debates (by, e.g., Edmund Randolph and George Mason); it avoids absurdities (might it really be the case that the President, without congressional authorization, could accept accepting a title of nobility from the British crown, or serve in a French governmental office?-- surely not); and, perhaps most importantly, the Executive branch and Congress have adhered to that reasonable understanding of the Clause’s application to the President for well over a century and, as far as I know, no President or other significant federal official has ever argued otherwise.
b. Almost half of the reply brief (pp. 3-15) is devoted to the argument that plaintiffs lack Article III standing. I haven’t studied the standing questions enough to have a firm view of how they should be resolved (except that I am doubtful that there remains a “zone of interests” tests for purposes of Article III (as opposed to statutes)). I continue to be of the view I expressed earlier, however, that “those arguments are much stronger than DOJ’s merits and justiciability arguments . . . . If the government prevails, then, it is likely to be on standing grounds.”
c. The government continues to argue (pp. 29-30) that even if a plaintiff does have standing, and even if the court concludes that the President is violating the Constitution, it would be unconstitutional for a federal court to enjoin the President from doing so, or even from declaring that he is acting unconstitutionally. I explain in Part III of my earlier post why I think this argument is implausible—indeed, something of an embarrassment—and that I’d be surprised if the Solicitor General continues to press it if and when the case gets to the Supreme Court. To like effect, see this excellent post by Steve Vladeck.
 One aspect of Professor Tillman’s amicus brief warrants brief mention, however: The brief asserts (pp. 23-24) that the view expressed by Edmund Randolph and George Mason in the Virginia ratifying convention—that the phrase “officers under the United States,” which appears in the FEC, encompasses elected officers (members of Congress, in particular)—“has been squarely rejected for over two centuries by our nation’s two highest judicial authorities: the Supreme Court of the United States and the Senate (as a court of impeachment),” such that “Mason & Randolph[’s] position . . . is now foreclosed.” Such a claim might give one pause if it were true: If the Supreme Court and the Senate have in fact “squarely rejected” the longstanding view, one had better take notice, no matter how reasonable that traditional view might be and no matter how counterintuitive the alternative. Suffice it to say, however, that the relevant paragraphs of the amicus brief leave much to be desired. The alleged authorities that Prof. Tillman’s counsel cites are the Court’s 1916 decision in Lamar v. United States, 241 U.S. 103, 112-113, and the Senate’s closely divided decision in 1799 that it “ought not to hold jurisdiction” over the impeachment trial of Senator William Blount. Yet the Lamar decision held no such thing—indeed, it points strongly in the other direction—and Professor Tillman’s own scholarly treatment of the Blount case is (commendably) much more measured, and hardly supports the brief’s characterization. See, e.g., footnotes 39, 52, 123 of this article, and notes 9 and 42 of this one. See also this article about the Blount case.