It’s never polite to boast, but the observation I made in a previous column has just been confirmed before a nationwide TV audience: the word “emolument” is all the rage.
In President-elect Trump’s news conference on Wednesday, he and his lawyer, Sheri Dillon, announced fairly elaborate plans to insulate Trump from his business entities during his term as president.
The arrangements are, of course, designed to avoid even the appearance of any conflict between his interest as a business-owner and the interests he will be sworn to protect and advance as president: those of the United States. Whether or not those arrangements are sufficient will no doubt be vigorously debated in coming days.
At the end of her presentation, Dillon directly addressed the question whether Trump will necessarily be in breach of what constitutional lawyers call the Foreign Emoluments Clause, which appears in Article I, Section 9 of the U.S. Constitution. This is a prohibition set forth in the Constitution, and is not directly related to any conflict of interest.
The Clause states: “[N]o person holding any office of profit or trust under [the United States] 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.”
Dillon insisted that, once he takes the oath as president, Trump will not in any way be in violation of the Foreign Emoluments Clause.
As an example, she referred to someone who paid his or her hotel bill (presumably after a stay in a Trump hotel); she concluded that such a “fair value exchange” is not an “emolument” within the meaning of the Constitution.
Although she never mentioned his name, I am certain that Dillon made these remarks to respond primarily to the position that Harvard Law School professor Laurence H. Tribe has forcefully asserted in the press.
Tribe is a renowned professor of constitutional law. He is also a person CNN has described as “a voice in liberal politics.”
In 2000, Tribe argued on behalf of Al GoreAlbert (Al) Arnold GoreTrump's election fraud claims pose risks for GOP in midterms Don't 'misunderestimate' George W. Bush Why the pro-choice movement must go on the offensive MORE in the Supreme Court case against George W. Bush. And, a few days ago, he signed a letter publicly urging the Senate to reject Trump’s nominee for Attorney General, Sen. Jeff SessionsJefferson (Jeff) Beauregard SessionsOvernight Hillicon Valley — Apple issues security update against spyware vulnerability Stanford professors ask DOJ to stop looking for Chinese spies at universities in US Overnight Energy & Environment — Democrats detail clean electricity program MORE (R-Ala.)
In a recent article for The Guardian (which I discussed in my previous column), Tribe wrote that, when he takes the presidential oath of office, Trump “will be committing a violation of constitutional magnitude,” because he will in violation of the Foreign Emoluments Clause.
Tribe says that the Clause covers “ordinary, fair market value” transactions. But that is not what the Clause says; if the drafters of the Constitution wanted to bar all ordinary, fair market value transactions with foreign agents, they could have said so. Instead, they barred the acceptance of an “emolument.”
Merriam-Webster defines “emolument” as follows: “the returns arising from office or employment usually in the form of compensation or perquisites”. The Oxford English Dictionary is almost identical: “Profit or gain arising from station, office, or employment.”
These definitions demonstrate, I believe that Dillon is correct and Tribe is incorrect about whether Trump will have committed “a violation of constitutional magnitude” when he takes his oath as president.
If an agent of a foreign state pays a Trump hotel for the use of a room, and some of that payment flows directly or indirectly to Trump while he is president, that payment most certainly does not arise from his office or employment as president, which is an essential part of the definition of “emolument.”
Rather, it arises from a fair market exchange—the guest is given the use of a room, the hotel is paid for that room—that had nothing to do with Trump being president.
Moreover, Trump has announced that, during his presidency, he will donate all income coming from foreign sources to the US Treasury. So, if the agent of a foreign state pays for a room in a Trump hotel outside the US, the part of that payment that flows to Trump will be turned over to the US Treasury.
Thus, even if it were somehow the case that, merely by taking the oath, Trump would run afoul of the Foreign Emoluments Clause (and I do not believe that is true), one would think that any alleged violation would be effectively cured by his decision to turn over all suspect income to the US Treasury.
“Emolument” is an interesting word, one that most of us do not run across in our everyday dealings. And it’s always nice to learn something about a fairly obscure provision in the Constitution.
But, regardless of the ferocity with which Trump’s ideological adversaries argue that his presidency will begin with a violation of the Foreign Emoluments Clause, it might be time to forget about that word and turn our attention to more serious matters.
David E. Weisberg is an attorney, and a member of the New York state bar. He has published pieces on the Social Science Research Network and in The Times of Israel.
The views expressed by Contributors are their own and are not the views of The Hill.