Sunday, June 18, 2017

President Trump's Foreign Emoluments

The news squall about President Trump's “emoluments” from foreign governments is at once amusing and interesting to consider.  Two suits that have been filed by members of the Democrat Partythe attorneys general of Washington D.C. and the state of Maryland, and 188 members of Congress–are disingenuous. This “emoluments” accusation was raised earlier by conservatives about the business dealings of the Clinton Foundation. No one put the jinni back in the bottle, but he has been out before. 

Theodore Roosevelt was President of the United States when he was awarded the Nobel Peace Prize.  The grant was controversial on several grounds, both abroad and in the U.S. Congress (Nobel Prize site here).  
“Roosevelt did not keep the prize money. Though he stated privately to his son Kermit that he wished he could have kept it for his children, his wife Edith said a public figure such as Roosevelt could not keep such a reward. Instead, when he accepted his prize, Roosevelt stated he would be donating the money to Congress for the funding of a permanent Industrial Peace Committee which would address “fair dealings between classes of society.” However, Congress never organized the committee and so, during World War I, Roosevelt petitioned Congress to return the funds to him so that he could distribute the money to war relief efforts and various charities. -- Theodore Roosevelt Center here.
Later, U.S. Secretary of State Cordell Hull was nominated for a Peace Prize, which eventually was bestowed. “The lawyer and Democrat from Tennessee was US Secretary of State from 1933 to 1944. Hull was nominated for the Peace Prize several times in the second half of the 1930s for having conducted a policy of fraternization with Latin America and for having negotiated free trade agreements with a number of states. " -- (Nobel Prize Committee here.

The nominally objective “Politifact” website has waffled on this topic, first regarding President Obama, and then Secretary of State Hillary Clinton. 
  • “Gingrich: Hillary Clinton broke law with foreign Clinton Foundation donations” Politifact: Mostly False (link here)
However, previously… 
  • "Obama re Theodore Roosevelt, Woodrow Wilson, and Henry Kissinger." Barely True (at first here )  but then ...  
  • Editor's note: This statement was rated Barely True when it was published. On July 27, 2011, we changed the name for the rating to Mostly False.
The Washington Post also presented both sides of the issue when the subject was Hillary Clinton.  The column was a Volokh Conspiracy Opinion: “Is the Emoluments Clause a problem for Hillary Clinton?” by Jonathan H. Adler for September 23, 2016. But Adler only pointed to another debate between two Case-Western Reserve law professors, Jonathan Entin and Erik Jensen. Their exchange ran in the Cleveland Plain Dealer and is archived on
  • The corrosive influence of 'presents' from foreign governments per the Emoluments Clause: Erik M. Jensen (Opinion) Updated on September 23, 2016 at 5:15 AM Posted on September 23, 2016 at 5:13 AM (here) 
  • Hillary Clinton's eligibility to be president is clear, despite the Emoluments Clause: Jonathan L. Entin (Opinion). Updated on September 23, 2016 at 5:14 AM Posted on September 23, 2016 at 5:13 AM (here
It is true that the businesses common to most US presidents have been military service and the law and, of course, elected office. Most were notoriously bad at business, which is why they went into politics.  Few had extensive business holdings. Standing as an exception to that, Nelson Rockefeller sought the Presidency in 1960 and 1964. He was appointed Vice President in 1974.  In response to current news about President Trump, Time magazine resurrected some of the controversy from its archives. (See here.)  

And, yet, the focus back then was only on the wealth itself, not any alleged foreign ties, though of course, they had to exist with his shares of Standard Oil and Chase Manhattan Bank. The same lacuna appeared (or failed to appear) in discussions about Steve Forbes or H. Ross Perot.

And what of the 200 military orders and decorations that American soldiers have received from 63 foreign governments? (Wikipedia here. )

"The United Nations and NATO are transnational governments that have awarded decorations to American soldiers.  Acceptance of the medals of other international multilateral organizations finally came with Executive Order 11446 in 1969. Acceptance of these international decorations must be approved by not only the Secretary of Defense, but also the Secretary of State." --  (Wikipedia here.)  It remains that neither the Secretary of Defense, nor the Secretary of State are the Congress, which, by law, is the only authority that can allow such gifts. 

The problem is not that President Trump accepted a few tens of thousands of dollars and a gold medal for discovering a new element. The problem is not that a foreign government awarded President Trump a medal for bravery.  The problem is that he profits from a transnational corporation, as do the Clintons, among many other people. Whether or not those dealings are grants of nobility or other emoluments has never been settled by legislation. Even a Supreme Court ruling could not take the question off the floor of Congress. That is the subject of the suit by 188 Democrat Party legislators (here). They are demanding that the courts order the matter back to Congress, itself a curious maneuver in American politics. 

"To redress that injury, Plaintiffs seek declaratory relief establishing that Defendant violates the Constitution when he accepts any monetary or nonmonetary benefit—any “present, Emolument, Office, or Title, of any kind whatever”—from a foreign state without first obtaining “the Consent of the Congress.” Plaintiffs also seek injunctive relief ordering Defendant not to accept any such benefits from a foreign state without first obtaining “the Consent of the Congress.” (Filing here.)

Article I. Section 9 of the U.S. Constitution 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.  

That restriction came from the original Articles of Confederation. 

Article VI.  No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

 Equality and independence are deeply complementary aspects of American culture. We treat the President as an equal because we expect him to be independent.

Previously on Necessary Facts
Libraries of the Founders
Why Democracy is Difficult
The Syrian Quagmire
Wolf Devoon

1 comment:

  1. "The problem is that he profits from a transnational corporation, as do the Clintons,"
    President Trump's problem, in my understanding, is the nature of his business makes it difficult to divest. He has a branding business centered on a brand tied to his personality.

    If he had a circuit board assembly business, he should sell it. It's fine to find clients by serving on boards, but I don't think it's fine to use the presidency to find clients. In that scenario, he should sell the business and have a blind trust manage his wealth.

    The problem with the Clinton Foundation was similar in that the Clinton name was central to the enterprise. It seemed less severe, though, because any emoluments to the Clinton Foundation don't go directly to Clinton's pocket.

    It seems like a lot to ask to say if you have an illiquid branding business and want to be president, you have to throw all that value away. OTOH, I try to imagine a personal brand I like, like Boomberg, a person I look up to who had equity in small company that sold; he invested the couple million he got from the sale and turned it into billions. What would I say if he were elected president? I would be thrilled, but I think he should sell that business and have nothing to do with it. Bloomberg would continue on as a brand name that has nothing to do with its products and services, like Amazon or Monster. If he loses wealth, that's the price he pays for becoming president. I would have a very hard time accepting him increasing the price on services he provides to major financial companies after he became president.