No, Trump is not in Violation of the Emoluments Clause
The Trump administration has been under siege from the left’s self-professed “legal resistance,” which has accused the president of violating the Foreign Emoluments Clause since part of the earned revenue from his hotels, for example, come from non-Americans who pay to stay there. This past Sunday during a coronavirus briefing President Trump defended himself saying he was not breaking any law and even said that President George Washington “had two desks… a presidential desk and a business desk” -- this was a deja-vu of last year when, after reversing his decision to host world leaders at one of his own properties during next year’s Group of 7, he dismissed Democratic efforts as the “phony emoluments clause” of the Constitution that prohibits a president from illegally profiting from his business while in office.
Trump was referring to Washington’s Mount Vernon’s plantation during his presidency, which had produced and sold tobacco to foreign governments. As president, Washington also had land holdings, most of which were on the (western) side of the Appalachian Mountains, and thus of dubious financial value. In 1785, he had gotten the Virginia House of Delegates to charter the Patowmack Company to build canals and otherwise improve navigation on the waterway (you know it as the Potomac River) that Washington was convinced could eventually, with a short portage or two, link the Ohio River to the Atlantic. This connection would knit East and West together and make the country stronger, Washington believed. It would also, not entirely coincidentally, make both his western landholdings and his home base at Mount Vernon more valuable. While he unsuccessfully sought to sell off his western lands in 1794, he held on to the Patowmack Company shares until his death. Incidentally, Washington accepted, as a diplomatic gift from France, a framed full-length portrait of King Louis XVI. Thomas Jefferson, as president, accepted a bust of Czar Alexander I from Russia. Neither president sought Congress’s consent to keep the gifts.
The Emoluments Clause of Article I, Section 9 of the U.S. Constitution prohibits any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Only explicit congressional consent validates such exchanges. The purpose of this clause was to ensure that the country’s leaders would not be improperly influenced, even unconsciously, through gift giving, then a common and generally corrupt practice among European rulers and diplomats.
The Justice Department has defended President Trump by citing a 2009 opinion from the Office of Legal Counsel. It had concluded that then-President Barack Obama, after receiving the Nobel Peace Prize in 2009, which included $1.4 million (he donated the money to charity) did not violate the Emolument Clause. Yet as the Framers of the Constitution held, the clause refers only to persons holding an office under the U.S. The Constitution’s language extends only to appointed positions, not to elected ones.
It was in fact the first U.S. Treasury Secretary Alexander Hamilton who set this precedent in 1793. When the Senate requested a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States,” Hamilton’s comprehensive report excluded all elected offices -- the president, vice president and members of Congress -- but included appointed positions in all three governmental branches.
Tenor Burrus, managing editor of the Cato Supreme Court Review, opines: “Unless we believe that the Framers intended to prohibit any presidential secondary source of income that could, even incidentally, do business with a foreign government or official, then clearly “emolument” is a term of art that covers specific types of payments and gifts.”
The reader may think that this a broad interpretation of the Emolument Clause. The U.S. Supreme Court in Hoyt v. United States, 51 U.S. 109 (1850) concluded that an emolument included “every species of compensation or pecuniary profit derived from a discharge of the duties of the office.” The Court also ruled in United States v. MacMillan, 253 U.S. 195 (1920) that “Moneys collected by a clerk are not public moneys of the United States, nor emoluments for which he must account to the government, i.e., any income for a service not pertaining to his office… was not a fee or emolument.” Aside the aforementioned acts of Washington, Jefferson, and Hamilton, the highest court of the land would favor Trump’s argument that he has not violated the Foreign Emoluments Clause.