This article originally appeared in The Recorder on December 9, 2019.
The House will soon vote to impeach President Donald Trump for threatening to withhold military aid to Ukraine unless the embattled nation investigated a long-debunked corruption allegation against a political opponent’s son. It’s the sort of offer-you-can’t-refuse demand for personal benefits in exchange for fulfilling a public duty that would, with anyone else, be a Vito Corelone-level violation of federal bribery and extortion laws. Or perhaps, given how clumsily it was handled, Fredo-level.
In drafting Articles of Impeachment, however, the House should not overlook what may be Trump’s most egregious violation of the Constitution’s text: flatly ignoring the clear requirements of the Foreign Emoluments Clause.Article I, Section 9, Clause 8 of the Constitution prohibits any person “holding any Office of Profit or Trust” of the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a “foreign State” without “the Consent of the Congress.” In other words, the President and other federal office-holders may not accept presents, jobs, titles of nobility, or “emoluments” without first disclosing the offer to Congress and obtaining Congress’s approval.
Former U.S. Solicitor General Walter Dellinger and I represent a bipartisan group of 20 former members of Congress – Californians like Barbara Boxer and Henry Waxman along with national figures like Gary Hart, Tom Harkin, and Chris Shays – as amici curiae in one of three lawsuits that allege Trump has been accepting foreign emoluments without even attempting to comply with the Constitution. That litigation is ongoing, but there’s no reason the House should wait to impeach Trump for violating the Clause.
What is an “emolument”? The word comes from emolumentum, Latin for the payment to a miller for grinding corn. In the late 18th Century when the Constitution was drafted, the not-so-uncommon word was understood to mean “a profit” or “advantage,” especially in the context of business. A 1775 pamphlet by Samuel Johnson, for example, described the “merchant’s desire” as “private emolument.” The word has similar meaning today but has, of course, fallen out of regular use.
The Constitution thus directs, simply enough, that anyone who holds a federal office must get congressional clearance before accepting business profits from a foreign state.
The Founders’ primary concern was that much wealthier European countries might bribe American presidents and ambassadors, who they feared might not be as loyal to their nation as European royalty was. They were so concerned about this kind of potential foreign corruption that they included a catchall provision – banning foreign emoluments “of any kind whatever.” That broad language led constitutional convention delegate Edmund Randolph to declare it “impossible to guard better against corruption,” and Joseph Story to describe the Clause as eliminating “foreign influence of every sort.”
Past presidents and holders of lower federal office scrupulously complied with the Foreign Emoluments Clause. Of course, none had the type of sprawling international business Trump has, which means that when the Clause has come up, it’s mostly had to do with gifts. In 1840, for example, the Imam of Muscat offered President Martin Van Buren horses, cashmere shawls, a box of pearls, and a sword. Van Buren told the Imam about “a fundamental law of the Republic which forbids its servants from accepting presents from foreign States or Princes” and submitted the offer to Congress, which directed the gifts be sent to the Department of State. Similarly, in 1862, President Abraham Lincoln wrote to the King of Siam to decline a series of presents that included two elephant tusks, an ornate sword, and a photograph of the King, because “our laws forbid the President from receiving these rich presents as personal treasures” without Congress’s approval.
President Woodrow Wilson refused all foreign medals while in office and during World War I due to the Foreign Emoluments Clause. In 1963, President John F. Kennedy shelved plans for honorary citizenship to Ireland, in part because the Foreign Emoluments Clause might have required congressional approval. In 2009, President Barack Obama investigated whether his Nobel Peace Prize required disclosure to and approval from Congress; the administration concluded not because the Nobel Committee not part of a foreign state. Numerous other presidents and hundreds of lower government officials across the centuries sought and obtained Congress’s approval before accepting anything of value from a foreign government.
Today, no one is offering Trump a Nobel prize. But Trump’s iconoclasty in maintaining ownership of his international business empire while serving as President doesn’t excuse compliance with the Constitution’s clear text – if anything, it’s even more of a reason to demand exacting obedience.
Trump’s foreign emoluments violations broadly fall into two types. First, the profits – the “emoluments” – that the businesses he still owns earn from foreign government spending. Trump’s hotels, for example, do brisk sales with foreign states. He earns profit on every room he rents to them, and some reports suggest that foreign governments are reserving entire floors of Trump’s hotels with no intention of ever using the rooms. Their goal is, of course, to curry personal favor with the president by indirectly paying him money.
Trump’s second foreign emoluments violation is in the long-sought permits and legal rights he’s received from foreign governments to benefit his businesses. Shortly after he took office, for instance, the Chinese government suddenly awarded Trump dozens of valuable trademark rights he had been fighting to obtain for nearly a decade. Is that a problem? The Constitution says Congress should decide.
These are just examples of foreign journalists have uncovered. There are surely many they haven’t, which is why the Constitution requires disclosure.
It’s important to note that there are no constitutional limits at all on Trump earning business profits from foreigners who are not acting at the behest of a foreign government. Nor does the Foreign Emoluments Clause bar him from renting hotel rooms to foreign governments or accepting permits and intellectual property rights around the globe, as long as he tells Congress what kinds of profits and valuable rights he’s getting from those governments and obtains Congress’s approval before accepting them. During the first two years of Trump’s presidency, when Republicans controlled both the House and the Senate, Congress would surely have given him any approvals he asked for – he simply had to ask. He didn’t.
Today, three lawsuits against the President over his refusal to comply with the Clause are winding through federal courts. One, in the Fourth Circuit, is brought by Maryland and the District of Columbia on the basis of commercial interests they claim to have in business conventions being harmed by Trump’s hotel in Washington. Another, in the Second Circuit, is brought by a consortium of New York hotels that say they are losing business from foreign governments because they can’t compete with the official influence perceived to come with staying in Trump’s own hotel chain. A third case in D.C. – the case in which I serve as amicus counsel – is brought by members of Congress who allege they cannot perform their constitutional duty to vote on foreign emoluments offered to the President because he refuses to inform them what emoluments he’s receiving from foreign states.
The suits variously seek declaratory judgments or injunctions; none ask the courts to remove Trump from office. For the most part, the Justice Department is opposing the lawsuits not on the merits but rather on justiciability grounds – that the plaintiffs don’t have standing because they can’t show an injury remediable by the courts, and that compliance with the Foreign Emoluments Clause is a political question the courts should stay out of for separation of powers reasons.
So far, a three-judge panel on the Fourth Circuit ruled in Trump’s favor, but the full court then took the case en banc; the Second Circuit ruled against Trump and remanded for trial; and the D.C. Circuit appeal is pending, the district court having ruled for the plaintiffs. All three cases will eventually make their way to the Supreme Court, assuming Trump is still in office by the time that happens. How that Court will rule is impossible to predict – Trump is pretty clearly violating the Constitution’s text, but the government’s justiciability arguments are far from frivolous.
That and the slow pace of appellate review makes it imperative for Congress to act now with impeachment. The Constitution is “the supreme law of the land,” and breaking the supreme law surely constitutes an impeachable high crime or misdemeanor. The Founders assumed a president who received a foreign present or emolument would be so loathed for his questionable loyalties that impeachment would be all but guaranteed: “No one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard against it by displacing him,” wrote Gouverneur Morris, author of the Constitution’s preamble.
Of course, this is 2019, and no one should kid themselves – in our era of party loyalty, there’s zero chance the required two-thirds of the GOP-dominated Senate will vote to remove Trump from office. Senate Republicans are too fearful of an angry Tweetstorm or primary challenger for conviction to be within the realm of possibility.
Even so, it’s hard to blame the Democrats for trying, given the interminable scandals that have made the Trump White House one of the dampest corners of D.C.’s swamp. Impeachment for violating the Foreign Emoluments Clause, even absent conviction, will drive awareness of Trump’s disregard for the Constitution’s text and establish a precedent that may guide the behavior of future Presidents and Congresses. It will confirm Trump’s actions merit the House’s highest form of censure and create a record for posterity.
And it will force Trump’s defenders to acknowledge for all of history that when it comes to Trump’s personal enrichment from foreign powers, “America First” means “Constitution Second.”
Ben Feuer is chairman of the California Appellate Law Group LLP*, a 15-attorney appellate specialty boutique with offices in San Francisco and Los Angeles. Ben has been called an “Elite Boutique Trailblazer” by the National Law Journal, named one of the “Top 40 Lawyers Under 40” in California by the Daily Journal, included on Benchmark Litigation‘s “40 & Under Hot List,” awarded the “Outstanding Barrister” prize by the Bar Association of San Francisco, and has been chosen as a SuperLawyer “Rising Star” for the field of appellate law nine times. He is the co-chair of the Appellate Section of the Bar Association of San Francisco, writes for the Washington Post and Los Angeles Times, and frequently appears on KGO Radio to discuss appellate and constitutional law issues.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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