Seth Barrett Tillman and I published an Op-Ed in the New York Times based on our amicus brief in CREW v. Trump. In honor of President Trump’s visit to France for Bastille Day, we recall how our first President celebrated the prison’s storming two centuries ago–with a diplomatic gift from the Marquis de Lafayette.
On Friday, President Trump will celebrate Bastille Day in Paris to reaffirm “America’s strong ties of friendship with France.” More than two centuries ago, the storming of the Bastille was commemorated when the Marquis de Lafayette, then a French government official, gave President George Washington the main key to the demolished fortress — a gift Washington kept without asking for Congress’s permission. Indeed, other early presidents followed this tradition of accepting gifts from other nations without ever seeking congressional consent.
This practice is one that Mr. Trump’s legal adversaries ignore as they attempt to redefine the meaning of the Constitution’s Foreign Emoluments Clause. Federal courts should not allow them to create a new legal restriction on the president’s conduct.
The Foreign Emoluments Clause requires those who hold an office of profit or trust under the United States to seek congressional approval before accepting gifts from foreign states. As understood at the time of the framing, only appointed officers hold such positions. In contrast, elected officials do not hold office under the United States, and thus the president is not bound by the clause. If new constraints are to be imposed on the president, they should come from the electorate and Congress, not from the judiciary.
The framers of our Constitution gave the president important authority over foreign affairs, including the power to nominate ambassadors, negotiate treaties and receive foreign ambassadors. From the earliest days of the Republic, other nations sought to reciprocate their appreciation by giving presents to the American chief magistrate. In 1791, for example, Washington received, accepted and kept a valuable gilt-framed full-length portrait of King Louis XVI from the French ambassador to the United States. Here too, Washington did not seek congressional consent for this gift.
Washington’s conduct was not unique. President Thomas Jefferson received a bust of Czar Alexander I as a diplomatic gift from the Russian government. Likewise, Meriwether Lewis and William Clark returned from their great trek with various diplomatic presents from foreign Indian nations. Jefferson received, accepted and kept these gifts, all absent any congressional consent. Jefferson had fierce political adversaries, but there is no evidence that he was criticized (much less sued or impeached) for continuing the tradition that had been established by Washington.
Mr. Trump’s legal adversaries cite instances in which Presidents Andrew Jackson, Martin Van Buren and John Tyler asked Congress to dispose of foreign government gifts. But none of these presidents actually asked to personally keep the gifts they received. There is no evidence Jackson, Van Buren or Tyler were aware that the early presidents — who took an active hand in the revolutionary drama and in framing the Constitution and ratifying it — accepted such gifts absent congressional consent.
More important, this antebellum trio is not remembered for its deep commitment to the nation and the rule of law. During wartime, Jackson arrested a Federal District Court judge who issued a writ of habeas corpus. Tyler was a delegate to the Confederate Provisional Congress. Van Buren was vice president during Jackson’s second term, and there is little reason to think he was doing anything more than following Jackson’s practice. Moreover, Van Buren’s 1837 presidential term started half a century after 1787, long after the framers and the meaning of the Foreign Emoluments Clause’s obscure office under the United States-language had largely faded from American political and legal life. Simply put, the original practice of the government in the Federalist era is more persuasive than practices from the age of Jackson and thereafter.
The Constitution offers several remedies for a president’s improper foreign entanglements. Congress can regulate, by statute, the receipt of presents from other nations or require the president to make disclosures about his foreign commercial arrangements. Of course, as a last resort, the president can be impeached and removed from office for bribery. However, the Foreign Emoluments Clause can provide no redress in relation to a president’s foreign entanglements either in the courts or through the impeachment process, for the simple reason that the clause does not cover the president or any other elected officials.