//  6/21/17  //  Commentary

Cross-posted from Balkinization

By Simon Stern (Associate Professor at the University of Toronto)

The government’s motion to dismiss in CREW v. Trump features a two-prong argument on the central issue in the dispute, namely, the meaning of the term emolument in the provision stating that “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.” The DOJ’s argument presumably offers a template for the government’s position in the other emoluments cases. First, according to the DOJ, the term emolument was “widely understood at the framing of the Constitution to mean any compensation or privilege associated with an officesuch as tolls, rents, fees, and the like, attached to the performance of official duties. Whether this claim can stand up to historical scrutiny remains doubtful, in light of analyses by John Mikhail (here and here), and by Joshua Matz and Larry Tribe. 

Second, according to the DOJ lawyers, it makes no difference that the term emolument also carried a broader sense, extending to “anything of value” such as a “benefit,” “advantage,” or “profit,” because (quoting Virginia v. Tennessee, 148 U.S. 503, 519 (1893)), “where a word is capable of different meanings or ‘[w]here any particular word is obscure or of doubtful meaning, taken by itself,’ the ‘obscurity or doubt may be removed by reference to associated words.’” Again quoting Virginia, the DOJ adds that we should construe terms by “apply[ing] to them the meaning naturally attaching to them from their context.” This trenchant observation, however, cuts in precisely the opposite direction from the one the DOJ urges.

No one seems to have any difficulty understanding what is meant by present, the word that precedes emolument on the list. People who receive presents might feel obliged to reciprocate, and even if they act with the best of intentions, their vigilance might occasionally flag. Instead of making government officials monitor themselves, the Constitution seeks to keep that need from arising in the first place. By the same token, the prohibition also prevents the circumstances that would make others look askance when a state actor confers favors, or offers preferential treatment that might appear to result from this sort of appreciative attitude. In an article on diplomatic gift-giving in the later eighteenth and early nineteenth centuries, Robert Ralph Davis, Jr. catalogued a wide array of presents that were prohibited under this clause, including snuffboxes, jewel-encrusted portraits, medals, porcelain, and, on one occasion, two horses and a lion. (Small gifts of fruit were okay, apparently.)

A provision that is aimed at eliminating opportunities for foreign influence, and that draws the line at receiving presents, would offer a remarkable display of incompetence. The Constitution also prohibits government officials from receiving offices or titles from foreign leaders. According to the DOJ, the list is completed by a ban on “any compensation or privilege associated with an office.” To construe emoluments in this way makes the framers seem utterly inept. Gifts, offices, titles, and payments for performing official duties (rents, fees, tolls) would thus be prohibited, leaving out the very category that falls between “present[s]” and these other items. It would be even more inept, when attempting to ban this limited array of benefits, to use a term whose normal sense sweeps more widely, to include profitable or beneficial arrangements generally—but to intend, by that term, only the narrow sense of “payment for official duties.” In this context, the broader sense is the one that more plausibly captures the provision’s aim: preventing corruption, and the appearance of corruption, by prohibiting activities that could result in favoritism.

Although the refrain “we love our customers” has become a banal sentiment that reeks of insincerity, it captures a psychological truth that goes without saying (that’s why its constant repetition makes it sound so insincere). According to Trump’s lawyers, the prohibition on emoluments cannot extend to the sale of goods for “fair market value.” But transactions of that kind, no less than gifts and titles of honor, tend to elicit a sense of gratitude—in fact, such commercial transactions are likelier to have that effect than the patronage of someone who pays you a toll or other fee for performing your official duty. When people get paid for duties performed in office, they tend to regard the money as merely their due, which anyone else would just as readily have paid. But profits from commercial transactions, particularly luxury goods (even if at “fair market value”) do elicit a sense of gratitude, for the obvious reason that the customer might have gone somewhere else. This is especially true when the customer makes a point of patronizing the owner’s hotel “so I can tell the new president, ‘I love your new hotel!’”

That is precisely the state of affairs that the framers sought to prevent, by opting for a term that applies not merely to a small subset of the transactions that might elicit the recipient’s gratitude, but rather to the whole array. Contrary to the DOJ’s contention, “the term ‘Emolument,’ when read harmoniously with the rest of the Clause,” does not have “the natural meaning of the narrower definition of profit arising from an office or employ.” Read alongside the ban on “present[s],” the natural meaning entails a prohibition on the various transactions that induce the recipient to respond with gratitude.

Simon Stern is Associate Professor, Faculty of Law & Dept of English, at the University of Toronto. You can reach him by e-mail at simon.stern at utoronto.ca

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