Trump’s Attorneys Opines on Emoluments Clause, Misquotes It

January 11th, 2017

During his press conference, President-Elect Trump called on Sheri Dillon, an attorney at Morgan Lewis, to discuss the Emoluments Clause. (She appears to be a tax lawyer, without any obvious constitutional practice experience).

I’m going to turn to one last topic today that has been of interest lately called emoluments. That’s a word I think we’ve all become familiar with and perhaps had not heard before.

And we’re gonna describe some other actions that President-elect Trump is taking to avoid even the appearance of a conflict.

Emoluments comes from the Constitution. The Constitution says “officials may not accept gifts, titles of nobility, or emoluments from foreign governments with respect to their office, and that no benefit should be derived by holding in office.”

That’s actually not what the Constitution says, and this is an unfortunate paraphrase. Article I, Section 9, Clause 8, provides:

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.

The clause does not apply to “officials,” but a “person holding any Office of Profit or Trust.”  It’s unfortunate the official transcript used quotation marks. That is not a quote.

Dillon continues to provide a definition of emolument:

The so-called Emoluments Clause has never been interpreted, however, to apply to fair value exchanges that have absolutely nothing to do with an office holder.

No one would have thought when the Constitution was written that paying your hotel bill was an emolument. Instead, it would have been thought of as a value-for-value exchange; not a gift, not a title, and not an emolument.

But since President-elect Trump has been elected, some people want to define emoluments to cover routine business transactions like paying for hotel rooms. They suggest that the Constitution prohibits the businesses from even arm’s-length transactions that the president-elect has absolutely nothing to do with and isn’t even aware of.

These people are wrong. This is not what the Constitution says. Paying for a hotel room is not a gift or a present and it has nothing to do with an office. It’s not an emolument.

Her analysis seems to assume the Clause applies to the President. (I’ll leave that debate aside for now, other to note that Will Baude recently entered the fray).

The Constitution does not require President-elect Trump to do anything here. But, just like with conflicts of interests, he wants to do more than what the Constitution requires.

So, President-elect Trump has decided, and we are announcing today, that he is going to voluntarily donate all profits from foreign government payments made to his hotel to the United States Treasury. This way, it is the American people who will profit.

Assuming that these payments are indeed prohibited emoluments, transferring the money does not cure the problem. The clause prohibits the “accept[ance]” of emoluments. Avoiding a violation would entail not accepting the emolument in the first place.

Update: Several commenters have told me that I was too harsh, and that Dillon was merely paraphrasing the clause in common language to make it easier for the press to understand.

Sorry, I’m a snoot about these things. If the President-elect is taking a position on the Constitution, he has to be careful. The paraphrase came close to making it difficult to raise a defense that the clause is inapplicable to the President.

This is the kind of significant decision that needs to be accompanied by a legal opinion by constitutional law scholars (like when John McCain retained Larry Tribe and Ted Olson to opine on natural born citizen clause), not offhand comments by a tax attorney.

This caution is especially important because attorneys on the left are champing at the bit to file an emoluments clause challenge.