The Foreign Emoluments Clause

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.

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.

After much deliberation, the Framers included the Foreign Emoluments Clause in the U.S. Constitution. 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.

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.

The Foreign Emoluments Clause: Background

Near the close of the Constitutional Convention 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 that a representative democracy is especially vulnerable to foreign corruption.

The Framers enshrined Sen. Pinckney's motion in Article I, Section 9 of the Constitution. It was based on a clause in the Articles of Confederation it replaced. The text is as follows:

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.

This section of the Constitution is also called the Title of Nobility Clause or Foreign Gifts Clause.

What Is an Emolument?

While the meanings of present, office, and title are clear, the definition of emoluments is a bit hazy. Black's Law Dictionary defines it as "the profit arising from office or employment; that which is received as a compensation for services..."

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 value." For more information, see the section below entitled "Who Can File a Claim?"

Congress has also provided some clarity through the Foreign Gifts and Decorations Act. It states that federal officials may not accept gifts valued at more than the current minimal value.

Application

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 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.

For a long time, constitutional scholars disagreed 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.

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.

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.

History

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. 

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.

Other presidents who have asked for congressional consent to receive emoluments include the following:

• Andrew Jackson
• Martin Van Buren
• John Tyler
• Benjamin Harrison

Abraham Lincoln once accepted a gift from a foreign nation, but he did so on behalf of the United States rather than as the president himself. He gave the gift to the U.S. Department of State.

In 1963, the Irish Prime Minister offered President John F. Kennedy honorary Irish citizenship. The symbolic gesture did not involve anything of monetary value, but the U.S. Attorney General had concerns that accepting the honor would violate the Clause. 

Since the offer of honorary Irish citizenship to President Kennedy would have been a present or title from a foreign state, it may have been considered a violation of the Clause. Kennedy ended up declining the honor.

President Barack Obama's attorneys concluded that his acceptance of the 2009 Nobel Peace Prize didn't violate the law. They reasoned that because a nongovernmental committee gave the award rather than a king, prince, or foreign state, he could accept it.

The Domestic Emoluments Clause

A lesser-known provision of the U.S. Constitution, the Domestic Emoluments Clause, can be found in Article II, Section 1. The Domestic Emoluments Clause applies only to the president.

The Clause attempts to both protect the president from and prevent them from engaging in domestic influence peddling. It aims to prevent Congress and the states from giving the president gifts in exchange for political favors.

The Clause also states that the president will receive compensation for holding office. Congress cannot increase or decrease the president's compensation. This prevents Congress from using its control of the president's salary to influence them. 

As Hamilton wrote in The Federalist No. 73, the Clause also maintains the president's independence. It does so by prohibiting them from putting personal monetary interests over national interests.

President Ronald Reagan asked the OLC for advice about whether he could accept retirement benefits from California. The OLC concluded that President Reagan could accept such benefits. It stated that California did not offer the benefits to influence him improperly. It also stated that the benefits did not constitute emoluments.

Who Can File a Claim?

Another question surrounding the Emoluments Clauses is who can file a lawsuit if they suspect the president or an appointed official violated the Clauses.

Someone needs standing to file a lawsuit. Standing requires the plaintiff to identify an injury they sustained. They must also show that the injury is fairly traceable to the alleged unlawful conduct. They must also show that their claimed relief can redress them for the alleged injury.

For example, in a personal injury case, the plaintiff is the person alleging they sustained an injury. They file their lawsuit against a defendant they allege caused their injury. They may file relief for payment of medical bills and other costs related to the injury.

With that in mind, how would someone file a lawsuit against the president for an alleged violation of the Emoluments Clause? Recent litigation involving the Emoluments Clauses has seen plaintiffs allege several variations of standing. The plaintiffs have found varying levels of success. The following sections describe some of these lawsuits.

Blumenthal v. Trump

In August 2017, more than 200 Democratic members of Congress filed a lawsuit against President Donald Trump. The members alleged violations of the Foreign Emoluments Clause. Their claims stemmed from the Trump Organization's business dealings.

The suit claimed several foreign governmental entities paid for rooms at the Trump International Hotel. The plaintiffs claimed the Constitution required them to vote on whether they consented to the alleged emoluments President Trump received via the transactions.

A district court found that the Democrats had a valid cause of action and claim against the president. It found that the plaintiffs had sustained an injury because President Trump denied them a rightful voting opportunity.

The U.S. Court of Appeals for the D.C. Circuit reversed the district court. It stated that members of Congress did not have standing and couldn't individually sue the president over an alleged institutional injury to the legislature as a whole.

The Supreme Court denied certiorari in the case in October 2020.

District of Columbia v. Trump

The state of Maryland and Washington, D.C. sued President Trump over alleged violations of both Clauses. Like Blumenthal, the plaintiffs argued that payments from foreign powers and domestic federal officials to Trump's businesses amounted to emoluments, violating the Clauses.

The district court held that the plaintiffs did not have standing to sue the president and dismissed the case. The Second Circuit Court of Appeals reversed the district court. It held that the plaintiffs had standing because they were in the hospitality business, and Trump's business may have harmed them.

Following President Joe Biden's election, the Supreme Court granted certiorari. It then remanded the case to the Second Circuit, instructing it to dismiss it for mootness.

Citizens for Responsibility and Ethics in Washington (CREW) v. Trump

CREW, along with various organizations and people associated with the hospitality industry in New York and Washington, D.C., filed a lawsuit against President Trump. They alleged violations of the Emoluments Clauses related to payments he received through his properties.

The district court dismissed the case, holding that the plaintiffs did not have standing. The U.S. Court of Appeals for the Second Circuit reversed the district court. Like the District of Columbia case, it held that Trump's business may have harmed the plaintiffs.

Once again, following President Biden's election, the Supreme Court remanded the case with instructions to dismiss it.

Questions About the Foreign Emoluments Clause or Other Federal Laws? Talk to an Attorney

Unless you're a federal official, chances are you won't be facing any legal actions alleging violations of the Foreign Emoluments Clause. If you have questions or need legal assistance in any other matters of litigation or constitutional provisions, consider consulting with a skilled legal professional. Get started today and contact an experienced litigation and appeals attorney near you.