You may have heard that a large group of Democrats in Congress are suing President Trump for his supposed violation of the Emoluments Clause of the Constitution. I heard this discussed on cable TV panels, but half the time those taking part in the discussion cannot even pronounce "emoluments" let alone explain what the clause means. Here's a short explanation:
First let's start with what the Constitution actually says:
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.
The Constitution prohibits an American from getting a title of nobility from our government. That was a way to prevent the creation of a permanent ruling class like the ones in Europe. Then the Constitution prohibits any government employee or office holder from taking a gift of any sort from a foreign country unless Congress approves. No cash, no article, no title, no office can be received from a foreign government.
Second, let's consider why it was that the clause is in the Constitution. Remember that after the Revolution and before the Constitution, the United States was governed under a document called the Articles of Confederation. During the five years or so that this was the governing document, there were foreign powers who were making gifts to American statesmen. For example, the King of France gave all manner of gifts to people with whom he dealt. Benjamin Franklin got a diamond covered gold snuff box, for example. Others got pensions or offices from the king. The members of the Constitutional Convention wanted to end that practice. They wanted to make sure that no one working for the government or holding office would succumb to bribes disguised as gifts. That brought about the Emoluments Clause.
Third, let's look at how this has been interpreted in the past. The Supreme Court has never ruled on this provision of the Constitution. Congress has passed an act that regulates how and when federal officials can accept gifts from foreign governments. For example, it is customary for visiting foreign leaders to give gifts to the President. Items of this sort are held by the government as government property, although the sitting president is allowed to use them. You may recall that when Bill Clinton left office, he tried to take some of the gifts he received with him, but he had to return them.
Fourth, let's look at the Democrats' argument. They contend that the Constitution requires President Trump to get approval from Congress before any of his various properties can accept business from foreign governments. In other words, the Democrats are not trying to stop gifts from a foreign country like Saudi Arabia to Trump; instead, they want to prevent the Trump hotel in DC from letting Saudi diplomats stay at that hotel. This is a laughable argument. The clause in the Constitution is designed to prevent bribed disguised as gifts. It is not intended to prevent all business transactions between an American federal employee and foreign governments. Consider this example: suppose a member of Congress owned a vineyard where she and her husband grew grapes and made wine. Suppose further that those grapes or wine were sold to a Chinese company owned by the government or to an embassy in Washington or a consulate in Los Angeles. That's not an imaginary situation; instead, it is exactly the situation of Nancy Pelosi, the Democrat leader of the House and one of the plaintiffs in the latest lawsuit. Has Pelosi violated the Constitution by failing to check out exactly who is buying the grapes and wine from her vineyard? Has she violated the Constitution if she knowingly is selling grapes to a company owned by a foreign government? Of course not. A business she owns is engaging in normal commerce, just like the Trump hotel in DC engages in normal commerce. Anyone can come to the hotel and rent a room or hold a function. The hotel does not have to investigate whether or not the person staying there is having his bill paid by a foreign government.
How about another example: let's suppose that a president had written a few books, something like Dreams of My Father by president Obama. President Obama got royalties from every purchase of that book by anyone. If the government of Kenya decided to buy 2000 copies to give to government employees before Obama made his visit to that country, is that a violation by Obama of the Constitution? The Democrats would argue that since a foreign government did business that put cash into Obama's pocket it must be a violation. That, however, is laughable too.
The real point is this: the Constitution wanted to prevent bribes disguised in the form of gifts. It had no intention to prevent normal commerce. The suit by the Democrats is nothing but a way to waste more time in court while screaming about it on TV.
First let's start with what the Constitution actually says:
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.
The Constitution prohibits an American from getting a title of nobility from our government. That was a way to prevent the creation of a permanent ruling class like the ones in Europe. Then the Constitution prohibits any government employee or office holder from taking a gift of any sort from a foreign country unless Congress approves. No cash, no article, no title, no office can be received from a foreign government.
Second, let's consider why it was that the clause is in the Constitution. Remember that after the Revolution and before the Constitution, the United States was governed under a document called the Articles of Confederation. During the five years or so that this was the governing document, there were foreign powers who were making gifts to American statesmen. For example, the King of France gave all manner of gifts to people with whom he dealt. Benjamin Franklin got a diamond covered gold snuff box, for example. Others got pensions or offices from the king. The members of the Constitutional Convention wanted to end that practice. They wanted to make sure that no one working for the government or holding office would succumb to bribes disguised as gifts. That brought about the Emoluments Clause.
Third, let's look at how this has been interpreted in the past. The Supreme Court has never ruled on this provision of the Constitution. Congress has passed an act that regulates how and when federal officials can accept gifts from foreign governments. For example, it is customary for visiting foreign leaders to give gifts to the President. Items of this sort are held by the government as government property, although the sitting president is allowed to use them. You may recall that when Bill Clinton left office, he tried to take some of the gifts he received with him, but he had to return them.
Fourth, let's look at the Democrats' argument. They contend that the Constitution requires President Trump to get approval from Congress before any of his various properties can accept business from foreign governments. In other words, the Democrats are not trying to stop gifts from a foreign country like Saudi Arabia to Trump; instead, they want to prevent the Trump hotel in DC from letting Saudi diplomats stay at that hotel. This is a laughable argument. The clause in the Constitution is designed to prevent bribed disguised as gifts. It is not intended to prevent all business transactions between an American federal employee and foreign governments. Consider this example: suppose a member of Congress owned a vineyard where she and her husband grew grapes and made wine. Suppose further that those grapes or wine were sold to a Chinese company owned by the government or to an embassy in Washington or a consulate in Los Angeles. That's not an imaginary situation; instead, it is exactly the situation of Nancy Pelosi, the Democrat leader of the House and one of the plaintiffs in the latest lawsuit. Has Pelosi violated the Constitution by failing to check out exactly who is buying the grapes and wine from her vineyard? Has she violated the Constitution if she knowingly is selling grapes to a company owned by a foreign government? Of course not. A business she owns is engaging in normal commerce, just like the Trump hotel in DC engages in normal commerce. Anyone can come to the hotel and rent a room or hold a function. The hotel does not have to investigate whether or not the person staying there is having his bill paid by a foreign government.
How about another example: let's suppose that a president had written a few books, something like Dreams of My Father by president Obama. President Obama got royalties from every purchase of that book by anyone. If the government of Kenya decided to buy 2000 copies to give to government employees before Obama made his visit to that country, is that a violation by Obama of the Constitution? The Democrats would argue that since a foreign government did business that put cash into Obama's pocket it must be a violation. That, however, is laughable too.
The real point is this: the Constitution wanted to prevent bribes disguised in the form of gifts. It had no intention to prevent normal commerce. The suit by the Democrats is nothing but a way to waste more time in court while screaming about it on TV.
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