Professor Jed Shugerman co-authored an op-ed for Slate about Trump’s possible violation of the Constitution’s Emoluments Clause.
The framers of the U.S. Constitution were deeply committed to preventing the corruption of their new republic. In fact, their anger over the corruption of the British monarchy and Parliament was a driving force behind the American Revolution. As the framers designed a system of government that has stood the test of time, they built safeguards to prevent American officials from falling prey to corruption, both then and now.
In recent months, one of those safeguards, the Foreign Emoluments Clause, has received a great deal of attention. This clause states that “no Person holding any Office of Profit or Trust under the United States, shall, without the Consent of Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Lawsuits against Mr. Trump contend that he may not accept payments from foreign governments through the Trump Organization’s many holdings.
Joshua Blackman and Seth Barrett Tillman, authors of an amicus brief defending President Trump, assert counterintuitively that this clause does not apply to the Office of the President. Why? First, because they assert that the office of the president is not “an office under the United States.” Second, Presidents Washington and Jefferson accepted a handful of diplomatic gifts. For Washington, it was barely a literal handful: a key and a painting. They claim we should pay more attention to what Presidents did than what the Constitution plainly states. They are wrong on both points.
First, they ignore what Framers actually said in the Convention and the state ratifying conventions. At the Constitutional Convention, Edmund Randolph, who would go on to be the nation’s first Attorney General, explained that the Clause was meant “to exclude corruption and foreign influence” and “to prohibit any one in office from receiving or holding emoluments from foreign states.” In the Virginia ratifying convention, Randolph was even more explicit about the problem of “the president receiving emoluments from foreign powers. . . . I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.” Blackman and Tillman offer no evidence from these conventions for their idiosyncratic view.
Second, our courts do not treat the practices of the early Presidents or Congresses as dispositive. John Adams and the Federalists passed and signed the Alien and Sedition Acts in 1798, which clearly infringed on freedom of speech and of the press, but their error did not change the meaning of the First Amendment. The First Congress passed the 1789 Judiciary Act, but the Marshall Court famously struck down part of it in Marbury v. Madison.
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But what about the idea that the Clause’s reference to “offices under the United States” applied only to appointed officials and not to elected officials like the President? Just as with anecdotes of presidential gifts, their evidence does not hold up. Neither the Clause itself nor any other part of the Constitution makes such a distinction. Tillman and Blackman claim that the Office of the President is not an “Office of Profit or Trust under the United States” because in England, an “office under the Crown” referred to appointed offices and not the King himself. Yet they offer no supporting historical evidence that the founders, whose criticism of the British monarchy is no obscure secret, equated the President with the King. The Framers replaced the sovereignty of the Crown with popular sovereignty, not Presidential sovereignty.