//  6/12/17  //  In-Depth Analysis

On Friday, the Department of Justice filed a motion to dismiss in CREW, et al. v. Trump, the suit alleging that President Trump is violating the Foreign Emoluments Clause (FEC), Article I, Section 9, clause 8.  The FEC 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.”  The CREW complaint alleges that two primary courses of conduct violate the Clause:  (i) the President’s receipt of profits from foreign officials’ use of hotels and restaurants owned by the Trump Organization; and (ii) China’s conferral of trademark protection to the President in February for the name “Trump” in connection with building construction services.  The plaintiffs ask for a judicial declaration that Donald Trump’s acceptance of these profits and trademarks “violates or will violate the Foreign Emoluments Clause”; they also ask the court to enjoin Trump “from violating the Foreign and Domestic Emoluments Clauses,” a remedy that might, in effect, require him either to relinquish ownership of his businesses, or to obtain congressional consent to do otherwise, during the period he serves in office.  [UPDATE:  I had earlier written that perhaps a blind trust would be an adequate remedy, but a couple of readers argued that it wouldn't be.  I have not thought through the details of that possibility, and therefore have decided not to suggest anything one way or the other about it.]

At the beginning and again at the end of its brief, the Department of Justice offers reasons for the court to dismiss the case without reaching the merits.  Parts I and II of the brief argue that the plaintiffs lack standing to challenge the alleged Emoluments Clause violations.  Part IV argues both (i) that federal courts are generally powerless to issue injunctions against the President to comply with the law, or even to issue declarations that the President is violating the law; and, implicitly, (ii) that what constitutes a prohibited “emolument” is a political question that federal courts cannot adjudicate.  Richard Primus has already posted some quick reactions to those two arguments in Part IV.  I’ll have a bit more to say about them at the end of this post.  For now, I'll defer to others to discuss the standing arguments in Parts I and II of the DOJ brief, except to note that I think those arguments are much stronger than DOJ's merits and justiciability arguments in Parts III and IV.  If the government prevails, then, it is likely to be on standing grounds.

In this post, I'll primarily focus on the middle section of the DOJ brief, Part III, which addresses the merits.  In that section, DOJ asserts a categorical conclusion (p.27)—namely, that the Foreign Emoluments Clause “does not prohibit any company in which the President has any financial interest from doing business with any foreign . . . instrumentality.”  The most remarkable thing about DOJ’s brief, however, is that this conclusion does not follow from DOJ’s explanation of the meaning of the term “emolument,” nor, for that matter, from any of DOJ’s analysis.  To the contrary, DOJ’s account of the Clause, and of the meaning of the term “emolument,” actually demonstrates that the President is violating the FEC, at least with respect to some of the conduct alleged in the CREW complaint.

I.  The Road Not Taken

Before addressing DOJ’s merits arguments, it’s worth emphasizing one argument the government does not make, and has effectively rejected.  The government agrees that the President is bound by the FEC—that is, that the Presidency is, indeed, an “office of profit or trust under [the United States].”  Now, that 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.  Recently, however, one scholar has floated a contrarian view that although the President holds an “office” for purposes of the Constitution, it is not an office “under the United States.”  That idiosyncratic reading is, in my humble opinion, implausible.  More importantly, however, it’s not part of the government’s defense in CREW v. Trump:  the DOJ brief demonstrates that the Executive itself adheres to its longstanding view that the President is bound by the FEC.

II.  The Non-Sequitur at the Heart of the DOJ Brief--and How it Shows that the President is Acting Unconstitutionally Even on DOJ's View of the Foreign Emoluments Clause

DOJ adopts a reading of the FEC under which an "emolument" requires some tie between the profit or payment in question and the President’s office or employment.  Relying almost exclusively upon a very selective survey of Eighteenth Century dictionaries and other contemporaneous definitions recounted in the Oxford English Dictionary, DOJ argues that “the term ‘Emolument’ in the Emoluments Clauses [i.e., both the FEC and the “Domestic” Emoluments Clause, Article II, Section 1, Clause 7 (“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”)] 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, on this view an emolument is “the receipt of value for services rendered or for a position held” (p.29, emphasis added). 

Notably, and contrary to one scholar's recent argument, DOJ does not argue that the Foreign Emoluments Clause applies only to “compensation for services a U.S. Officer receives through an office or employment relationship with a foreign government” (quotation from Section II-C of this article by Andy Grewal).  Instead, DOJ acknowledges that although an emolument can take the form of benefits for services performed “in a capacity akin to an employee of a foreign state (e.g., serving as a consultant to a foreign power),” an “emolument” can also “arise from the President’s service as President” (p.29, referring to the Domestic Emoluments Clause); see also id. ("compensation arising from that office"); id. (the Foreign Emoluments Clause “prohibits benefits arising from services the President provides to the foreign state . . . as President (e.g., making executive decisions favorable to the paying foreign power)”); id. at 26 (“Neither the text nor the history of the Clauses shows that they were intended to reach benefits arising from a President’s private business pursuits having nothing to do with his office or personal service to a foreign power.”).  Indeed, DOJ properly stresses (p.35) that “the evils sought to be prevented by the Clause are inducements in the forms of pecuniary compensation and other benefits for the President’s services as President, as such benefits would pose the greatest danger of undermining the President’s independence” (emphasis in original).

Whether the term “emoluments” includes such an office-nexus requirement (i.e., a tie between the payment and the President’s office or employment), as DOJ argues, is certainly open to question.  For one thing, and as DOJ forthrightly acknowledges (p.30), “a broader definition . . . also existed at the time of the founding,” one that comports with plaintiffs’ definition of the term as encompassing “anything of value.”  Indeed, as my colleague John Mikhail has shown in a series of posts (see herehere and here), the Framers often used “emolument” in that broader, less qualified sense; and Blackstone also repeatedly embraced that broader connotation.  The emoluments clauses of the Constitution might well reflect this broader understanding. 

A requirement that the payment or profit “arise from” the officer’s office or employment would also be difficult to reconcile with at least some cases in which the Executive itself has conceded the FEC’s prohibition applies.  See, e.g.Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 119 (1993) (FEC prohibited officers from drawing shares of their law firms’ profits because those firms had foreign governmental clients, even where the officers “did not personally represent a foreign government, . . . had no personal contact with that client of the firm, [and] could not be said to be subject to the foreign government’s ‘control’ in his or her activities on behalf of the partnership”).[1]  It would also depart from the functional test the Executive has often applied.  For example, a 1981 OLC opinion concluded, based primarily upon Framing-era history—including Edmund Randolph’s use of the term “emolument” to refer to a present rather than compensation for services in the Virginia ratifying convention—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).

DOJ rejects the CREW plaintiffs' broader reading of “emolument” to mean “anything of value,” primarily because it would appear to prove too much—to reach common cases that present no risk of triggering the concerns underlying the FEC prohibition.  For example (p.46), “if the term ‘Emolument’ means ‘anything of value’ from a government instrumentality, then mere stock holdings by a covered official in companies that conduct business globally would also violate the Foreign Emoluments Clause, since some of those companies’ earnings would be attributable to business with foreign governments.”  Similarly, “under Plaintiffs’ theory, a President could not hold United States Treasury bonds while in office [as President Obama did] because the accrued interest would be benefits ‘from the United States’ under the Domestic Emoluments Clause” (id.); and “royalties from foreign book sales received by a President or covered official while in office would offend the Foreign Emoluments Clause if any of them were attributable to purchase by a foreign government instrumentality, such as a foreign public university” (id., and noting that many foreign public universities have President Obama’s books in their library collections).  DOJ also cites President Washington’s purchase of several lots of public land from the federal government in a public sale in 1793 (p.38); Washington’s export of flour and cornmeal to “England, Portugal, and the island of Jamaica” (p.36); and President Jefferson’s export of tobacco to Great Britain (where foreign officials might well have been among the purchasers) (p.37).

With such examples in mind—cases in which presumably no one has ever thought to raise Emoluments Clause concerns—DOJ argues, with some force, that “[n]either the text nor the history of the Clauses shows that they were intended to reach benefits arising from a President’s private business pursuits having nothing to do with his office or personal service to a foreign power” (p.26). 

Although I agree that the plaintiffs' “anything of value” test would appear to point to some counterintuitive results, such as those DOJ describes, it is not obvious to me that one must adopt DOJ's “office nexus” test to avoid such results—a functional test, for example, such as the Executive has applied in the past, would probably suffice to deal with such cases where the payment in question plainly is neither designed, nor has any potential, to influence the officer’s official conduct.  For example, in its 1981 opinion, OLC concluded that President Reagan’s continued receipt of a California pension in which he acquired a vested right six years before he became President, and for which he no longer had to perform any services, did not violate the Domestic Emoluments Clause’s prohibition against the receipt of “emoluments” from a State, even though such payments did “arise from” Reagan’s past employment by the State (as Governor), because a prohibition on the receipt of such benefits, which vested before the person assumed federal office, would not advance “the purposes [the Clause] is intended to achieve.”

Be that as it may, however, here’s the significant point that emerges from the DOJ brief:  Even if one accepts DOJ’s “office nexus” requirement, it would mean that President Trump has violated the Emoluments Clause, assuming that certain of the plaintiffs’ allegations are true

DOJ’s argument, recall, is that “emolument” means any “profit arising from an office or employ” (p.31)—the “receipt of value for services rendered or for a position held” (p.29).  In other words, if President Trump accepts any profits from payments made by a foreign nation or official that would not have been made but for the fact that he is the President, he has accepted a forbidden foreign emolument (and/or, in some cases, perhaps, a forbidden “present”).  

Well, as it happens, the plaintiffs have alleged just that.  For example, their complaint alleges (para. 62) that some foreign diplomats have indicated an intent to stay at the Trump International Hotel in D.C., or to hold events there, in order to curry favor with the President.  (If the allegations are true, this is hardly an accident for which the Trump Organization bears no responsibility (paras. 60-61):  After the President was elected, the Organization “pitched the hotel to about 100 foreign diplomats, and the hotel hired a “director of diplomatic sales” to facilitate business with foreign states and their diplomats and agents.)  

The complaint also alleges (paras. 72-75; see also this piece by Judd Legum and Kira Lerner), that 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. 

The complaint further alleges (paras. 111-118) 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 Trump pledged to Chinese President Xi Jinping that he would honor the United States’s longstanding “One China” policy. 

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 view, Trump’s acceptance of the profits and benefits violated the Foreign Emoluments Clause.  

Moreover, even where the complaint does not allege that Trump’s presidency was a “but for” cause of a foreign entity’s decision to do business (or grant trademarks), the complaint also alleges that some of the profits from foreign officials’ transactions were the result of the fact that Trump is now President.  “Since Defendant’s inauguration as President, goods and services sold by his various businesses have sold at a premium,” according to the complaint (para. 150).  “Thus, for example, the starting rate for guest rooms at Defendant’s Old Post Office hotel increased to $500 on most nights, up hundreds of dollars from when the hotel first opened shortly before Defendant’s election” (para. 151).  These extra profits—some of which presumably derived from foreign officials—surely “arose from” Trump’s office; his ascension to the presidency was a direct and necessary cause of the price increases.

Therefore, even if DOJ were correct that “[n]either the text nor the history of the Clauses shows that they were intended to reach benefits arising from a President’s private business pursuits having nothing to do with his office or personal service to a foreign power,” that would not settle the question in the President’s favor, because at least some of those benefits do have something “to do with his office”—indeed, they would not have been realized but for the fact that he holds that office.[2]

In sum, even if the term “emolument” were limited, as DOJ argues, to any “profit arising from an office or employ” (p.31)—to the “receipt of value for services rendered or for a position held” (p.29)—it would not follow, as DOJ apparently assumes, that the emoluments clauses categorically “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality” (p.27).  The clauses might not prohibit all such transactions, on this view, but they would, at a minimum, prohibit those transactions in which the President realizes a profit or benefit by virtue of the fact that he holds his federal office.  And the CREW complaint alleges at least some such cases.

III. A Few Thoughts on the Nonjusticiability Arguments in Part IV of the DOJ Brief

In Part IV of its brief, DOJ argues (p.48) that “an injunction against the President in his official capacity” is “an unconstitutional remedy,” citing Mississippi v. Johnson.  As Richard Primus points out, this argument fails even on its own terms, since the CREW lawsuit isn’t seeking “to enjoin the President in the performance of his official duties,” Mississippi, 71 U.S. at 500-01.  Instead, the plaintiffs are seeking declaratory relief, as well as an injunction requiring the President to divest himself of property that he personally owns, or to put it in a blind trust. 

Even if the plaintiffs were seeking to enjoin the President from acting unconstitutionally “in the performance of his official duties,” however, the DOJ argument would be fairly audacious, to say the least.  After all, the Supreme Court has upheld such injunctions in landmark cases such as United States v. Nixon and Boumediene v. Bush.  And there are plenty of lower court cases in which courts have likewise enjoined the President in his official capacity from acting in violation of the Constitution or other federal law, many of which Jonathan Siegel canvassed in a 1997 article

As Professor Siegel explains, the Court’s suggestion in Mississippi v. Johnson that courts lack the power to issue such injunctions againstthe chief executive was fairly indefensible even on its own terms (especially the Court’s singularly unpersuasive and mostly incoherent effort to argue that the remedy sought in that case—a prohibition on direct military officials to superintend Southern states—would not have been “ministerial”).  Mississippi is today widely understood to be a case in which the Court was simply searching for some reason, however implausible, to avoid reaching the merits of whether the congressionally prescribed military rule in Reconstruction could be reconciled with the Constitution.  See, e.g., David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 300 (1985) (the Court’s argument “would seem equally applicable to suits against other government officers” and “wholly fails to persuade”).  And thus, not surprisingly, the Court’s “holding” about the judiciary's lack of authority to enjoin the President has not carried the day.  In Boudmediene, for example, the Department of Justice ran the Mississippi argument in the lower courts, just as it does now in the CREW case.  When the case reached the Supreme Court, however, Solicitor General Clement wisely abandoned that argument—and the Court ultimately approved an injunction that ran against President Bush.  I suspect the same thing will happen here:  At some point, DOJ will quietly abandon the untenable argument that courts are powerless to enjoin President Trump from violating the Constitution.

Finally, on the final page of its brief (p.50), DOJ suggests, without quite saying so directly, that the question of what constitutes a forbidden “emolument” is one that the Constitution leaves to the political branches—Congress, in particular—and is therefore a question beyond the purview of the federal courts.  This argument is premised on the fact that the Foreign Emoluments Clause gives Congress the power to permit federal officials to accept presents, emoluments, etc.  There are, I think, very good reasons why DOJ does not come right out and argue that the case raises a nonjusiciable political question, in addition to those Richard has noted.  In particular, that it would mean the courts could construe "emoluments" for purposes of the Domestic Emoluments Clause (which does not have a congressional consent provision), but not for purposes of its "foreign emoluments" counterpart--which hardly seems likely.  Some of CREW’s attorneys have effectively canvassed the reasons why a "political question" argument would not fly, in Part III of this paper; I commend it to readers who might be interested in the PQD question, along with this comprehensive post by Joshua Matz.

This final DOJ argument, however, does bring to mind one other troubling thing about this case:  As it happens, there is an entity within the "political" branches that has historically analyzed whether particular conduct by federal officials would violate one or both emoluments clauses--the Office of Legal Counsel.  President Trump, however, circumvented OLC here, preferring instead to take his constitutional advice from his personal attorneys at Morgan, Lewis and Bockius, who produced a "White Paper" that is, suffice it to say, hardly OLC-quality legal work.  (Among its embarrassments are its bold declaration that "[t]he scope of any constitutional provision is determined by the original public meaning of the Constitution’s text" (ordinarily, a lawyer advising a client to that effect would be committing malpractice), and then its utter failure even to analyze what that "original public meaning" was!)  In its brief, DOJ presumably is defending a decision made by the President before any consultation with, let alone any thorough analysis by, OLC.  As with so much in this Administration, that is not the way things are supposed to work.  [UPDATE:  Indeed, Bob Bauer raises some good questions about whether Trump's personal lawyers should be representing him, in part so that DOJ could offer the unvarnished views of the United States without the burden of having to defend a decision of the President regarding the legality of his personal earnings that was reached without apparent DOJ involvement.]  

If OLC had been asked, back in January, about the President's business practices, I suspect the Office would have concluded that at least some of those practices put him in violation of the FEC--and would further have advised the President of certain prophylactic steps he should take to avoid any further constitutional violations, not least of which might have been a recommendation that the President seek congressional consent to some or all of his earnings, the remedy that has historically been proposed whenever thorny emoluments questions have been raised.  Alas, that is not the path he (and his White House Counsel) chose.  And therefore the Department of Justice now finds itself defending the constitutionality of practices that its own experts did not have an opportunity to vet, making arguments that are in considerable tension with the mode of analysis that OLC has employed in the past to evaluate emoluments questions.


[1] In light of the 1993 ACUS opinion, the DOJ brief is misleading, at best, when it represents (p.42) that “in every published OLC or Comptroller General opinion in which proposed conduct was determined to involve prohibited emoluments, the determination involved an employment relationship (or a relationship akin to an employment relationship) with the foreign government.”

[2] This is in sharp contrast with, for example, President Washington’s 1793 purchase of lots from the federal government.  When Washington wrote to the Commissioners to inquire about his prospect of being permitted to purchase more lots, he was careful to emphasize that he had “no desire . . . to stand on a different footing from every other purchaser.”  The public auction at issue presumably guaranteed that Washington's service as President had no affect on whether he was given the opportunity to purchase the lots.

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