The Foreign Emoluments Clause is in the forefront of the nation’s attention with the inauguration of President-elect Trump today. So much so that a white paper has been produced to deal with the issue. The President-elect’s lawyers have focused on three important constitutional arguments to support their conclusions that Trump’s business interests present no conflict under the Clause.
John Mikhail in his blog discusses these arguments:
1. Originalism, in the sense that any reading of a provision of the Constitution should be based on its original interpretation by the Founding Fathers. Any foreign government business at Trump’s hotel or similar enterprizes will not qualify as an emolument based on a lack of historical evidence to support such an interpretation.
2. An emolument is interpreted as any compensation/payment or privilege or benefit with respect to the holding of office. But it doesn’t include all payments from all sources. In this regard services to guests at a hotel has nothing to do with the performance or discharge of duties associated with an office.
3. An emolument does not include ordinary “fair-market-value transactions”.
Mikhail goes on to point out that none of the above arguments are substantiated by any leading legal opinions or sources. He also suggests that there is actually evidence to the contrary and that the original meaning of emoluments extends to payments or benefits beyond the duties of office. Mikhail also provides many examples where emoluments are associated with ordinary business dealings. Trump’s businesses could therefore be seen to violate the Clause.
Mikhail concludes that much deeper analysis of the relevant sources of authority would need to be undertaken to understand how the Foreign Emoluments Clause was interpreted originally. But the sources provided in the white paper lend relevance to the suggestion that the arguments presented by Trump’s lawyers fails to pass muster.
Also, this focus on originalism in the lawyers’ arguments side steps the other side of the coin – that opinion is deeply divided about interpreting the Constitution this way today.