Tuesday, November 22, 2016

Foreign Emoluments

It's a year for new things, I suppose. In their flailing about, Trump opponents have been grasping at any straw that they think might turn into a sword. Thus, for instance, we've had people campaigning for Electors to change their vote (a licit last-resort option even if a very bad precedent for future elections) or sending in death threats to them. The latter, of course, is an unacceptable action that should be a jailable felony, if it isn't already. Anyone who is trying to oppose the Trump presidency by undermining or subverting the integrity and safety of the constitutional process is a moron and deserves nothing but contempt; it is precisely the attempt to subvert process of law by force and intimidation that is the greatest danger to any free society.

But some are a bit more creative; it isn't often that people suddenly gain an interest in the Foreign Emoluments Clause, but this election has stirred up precisely such an interest. The U. S. Constitution, Article I, Section 9, Clause 8:

No Title of Nobility shall be granted by the United States: 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.

This clause, the basic idea of which goes back to the Articles of Confederation, is an important, interesting, and not-very-explored clause. An emolument in the strict sense is a form of paid employment; but the term can also be read as covering any kind of definite profit. I would be inclined myself to read it as meaning wages or salaries, but this is obviously not necessarily the only reasonable reading.

The question that comes about is whether Trump's business interests risk putting him in violation of this clause. Note that the question is not, contrary to occasionally bad reporting, whether he is in violation of this clause -- Trump does not yet hold an office of profit or trust under the United States. ('President Elect' is not an office at all; while the President Elect has access to some resources, under supervision of the Office of the President, in order to facilitate the legal transition of the office, he holds no constitutional or statutory office. When Obama was President Elect, in fact, he was fairly heavily criticized for acting as if he did have an official position.) Once he becomes President, a potential conflict of interest arises if (for instance) foreign diplomats stay at Trump hotels. Would such a thing run afoul of the Foreign Emoluments Clause?

Unlike a lot of the things that have been bandied about, this is a legitimate concern. It's also one that we have no idea how to answer. For one thing, it can't be determined until (1) Trump is inaugurated as President and (2) we see how he actually arranges his business interests, neither of which have happened yet. And, no doubt, when it does it will involve rather complicated issues of business law. Nonetheless, this is something that certainly must be handled properly.

Even if a serious candidate for violation of the clause comes about, it's unclear what would happen. To bring it to court, a citizen would need standing -- in particular, they would need to have suffered some definite harm themselves and be able to sue under statutory law. This doesn't seem to be the case here. Thus Congress is the only authority capable of doing anything about it. (This is actually not surprising at all, if one thinks about it. Congress is the sole competent authority to determine whether something was done with the consent of Congress, and, since the Foreign Emoluments Clause is obviously an anti-corruption clause, and the Presidency is a significant constitutional office, arguably the most appropriate channel for handling such a violation would be impeachment, for which Congress is also the sole competent authority.) This adds a third obstacle to determining how it will all work, since we can't say much until (3) we see what safeguards, if any, Congress will expect to be put in place. Congress will likely not demand much as long as its relationship with Trump does not sour badly; but if it does, if there is no clear, definite framework in place already, Congress will have the ability to hold it over Trump. Actually, I think this is very much how it's supposed to work -- that is, I think it's a mistake to pre-interpret the clause beyond very general principles, because precisely the point, I think, is to give a solid ground for Congress to decide when something is unacceptable.

Contrary to the way it is treated in a lot of places, I doubt that the issue has much popular traction as long as there is no clear and direct evidence of quid pro quo and as long as Trump himself ceases to be active in the operations of his business concerns -- people who voted for him already knew he had them, and so are not going to regard their mere existence as a problem, and I suspect there is a large pool of people who didn't vote for him for whom this would also be true; and the popular pressure would have to be immense for Congress, and especially a Republican Congress wanting to avoid a scandal about a Republican President, even to move on the matter without some specific 'smoking gun'. It's definitely a point that citizens have a responsibility to watch, but for all practical purposes we don't know anything yet beyond the fact that it bears watching.

Three reasonably sober discussions of the matter:

* Zephyr Teachout, Trump's Foreign Business Ties May Violate the Constitution
* Noah Feldman, Trump's Hotel Lodges a Constitutional Problem
* Jonathan Adler passing on comments by Erik Jensen, The Emoluments Clause -- Is Donald Trump Violating Its Letter or Spirit?

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