{"id":369042,"date":"2019-05-03T14:44:32","date_gmt":"2019-05-03T19:44:32","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/litigation\/legal-system\/the-foreign-emoluments-clause.html"},"modified":"2024-04-10T16:53:25","modified_gmt":"2024-04-10T21:53:25","slug":"the-foreign-emoluments-clause","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/litigation\/legal-system\/the-foreign-emoluments-clause.html","title":{"rendered":"The Foreign Emoluments Clause"},"content":{"rendered":"\n
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The Foreign Emoluments Clause<\/h1>\n
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\n By Samuel Strom, J.D.<\/a> | Legally reviewed by Melissa Bender, Esq.<\/a>\n | Last updated\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

After the United States won the Revolutionary War, the Framers met in Philadelphia to discuss how the new nation would operate. Together the Framers discussed and debated what would become our democracy and the U.S. Constitution.
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One discussion they had was how to avoid the dangers of foreign influence and corruption. The Framers knew from experience that these posed a significant threat to the new nation.<\/p>\r\n

After much deliberation, the Framers included the Foreign Emoluments Clause<\/a> in the U.S. Constitution<\/a>. It prohibits federal officials from accepting any gift, salary, or title from a foreign power or ruler. However, they can accept it if they get Congressional approval.<\/p>\r\n

Although the U.S. Attorney General has raised concerns over the Foreign Emoluments Clause, few courts have had an opportunity to interpret it. Therefore, the scope and proper application of the Clause is somewhat unknown. This article discusses its history, meaning, possible interpretations, application, and exceptions.<\/p>\r\n

The Foreign Emoluments Clause: Background<\/h2>\r\n

Near the close of the Constitutional Convention<\/a> in 1787, U.S. Senator Charles Pinckney moved to include language to protect against external influence. Around the same time, Treasury Secretary Alexander Hamilton wrote in Federalist No. 22<\/a> that a representative democracy is especially vulnerable to foreign corruption.<\/p>\r\n

The Framers enshrined Sen. Pinckney’s motion in Article I, Section 9<\/a> of the Constitution. It was based on a clause in the Articles of Confederation<\/a> it replaced. The text is as follows:<\/p>\r\n

No Title of Nobility shall be granted by the United States: And 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.<\/i><\/p>\r\n

This section of the Constitution is also called the Title of Nobility Clause or Foreign Gifts Clause.<\/p>\r\n

What Is an Emolument?<\/h3>\r\n

While the meanings of present, office, and title are clear, the definition of emoluments is a bit hazy. Black’s Law Dictionary<\/a> defines it as "the profit arising from office or employment; that which is received as a compensation for services…"<\/p>\r\n

In recent decisions, two federal courts regarded the definition of an emolument. The courts broadly defined an emolument as "any benefit, gain, or advantage of more than de minimis<\/i><\/a> <\/i>value." For more information, see the section below entitled "Who Can File a Claim?"<\/p>\r\n

Congress has also provided some clarity through the Foreign Gifts and Decorations Act<\/a>. It states that federal officials may not accept gifts valued at more than the current minimal value<\/a>.<\/p>\r\n

Application<\/h3>\r\n

The Foreign Emoluments Clause applies to all elected and appointed government officials. This includes U.S. diplomats and other federal officials stationed overseas. It does not include advisors<\/a> or others who do not hold official office in the federal government. It also doesn’t apply to any government official who has the consent of Congress via a vote.<\/p>\r\n

For a long time, constitutional scholars disagreed<\/a> on who the Foreign Emoluments Clause applied to. Some argued it was for appointed officials. Others believed it also applied to elected officials like the president and vice president.<\/p>\r\n

Some scholars pointed to historical evidence that suggested it did not apply to elected officials. They noted that President George Washington accepted a gift from a French ambassador and did not consult Congress. They also pointed out that President Thomas Jefferson accepted gifts from Indian tribes and foreign nations without congressional approval.<\/p>\r\n

The Department of Justice’s Office of Legal Counsel (OLC) has concluded that it applies to elected officials and, therefore, to the president. A district court agreed with the OLC’s conclusion in a recent decision. It applies to every federal officeholder.<\/p>\r\n

History<\/h3>\r\n

In the late 1700s, Benjamin Franklin spent time representing America’s interests in France. Before Franklin left France in 1785, King Louis XVI offered him a valuable gift: a golden case lined with diamonds. Franklin wrote to Congress, asking if he could accept the gift or if doing so would violate the Articles of Confederation. <\/p>\r\n

Congress voted and allowed him to accept the gift. Scholars say that Franklin’s request for congressional consent influenced the Framers when drafting the Foreign Emoluments Clause.<\/p>\r\n

Other presidents who have asked for congressional consent<\/a> to receive emoluments include the following:<\/p>\r\n