Emoluments? What's that?
THE EMOLUMENTS CLAUSE(S) AND PRESIDENT DONALD J. TRUMP Copyright © 2018 By Barney Rosenberg President, Ethics Line, LLC United States Federal District Judge Peter J. Messitte and I have been friends for more than 50 years. We served as Peace Corps volunteers together in Brazil in the 1960s, became law partners upon our return to the States, and have been the closest of friends ever since. I am delighted to have an opportunity to discuss the landmark case that he recently decided relative to possible corruption on the part of U.S. President Donald J. Trump. One Clause of the U.S. Constitution, the Foreign Emoluments Clause, provides that no person holding an office of profit or trust under the United States shall receive any present, emolument, office or title of any kind whatsoever from a foreign government, unless Congress approves. The Domestic Emoluments Clause, which refers to the federal and state (not foreign) governments, says specifically that the President’s salary shall not be increased by an emolument. Until the 52-page Opinion of Judge Messitte was written just a few weeks ago, neither of those Clauses had been interpreted by a Federal Court. It is well known that Donald Trump, a billionaire, has a far-flung business empire of hotels, restaurants, meeting spaces, and on and on, throughout the world. One of his prized properties is the Trump International Hotel in Washington, D.C. which, during the short time of its existence, has brought in millions of dollars in revenue. Even before President Trump took office, many commentators were citing his likely violation of the Foreign Emoluments Clause by reason of ownership of these facilities, many of which specifically cater to patronage by foreign governments. Eventually the Attorneys General of the State of Maryland and the District of Columbia decided that the hotel and event space facilities in their jurisdictions were being unfairly disadvantaged by the glittery Trump International Hotel in the District of Columbia, so they undertook to file a lawsuit against the President based on the Emoluments Clauses. The President’s attorneys argued that the Clauses have no application to him because he is giving a service through his hotel and only getting fair payment in return. The Attorneys General, in contrast, argued that the word “emolument” in both Clauses referred not just to payments in addition to the President’s salary; it included any “profit,” “gain” or “advantage” that he might receive from a foreign, the federal, or state government, regardless of whether it was in connection with his office as President. The Plaintiffs pointed to the fact that a number of foreign governments had made statements to the press that they were staying in the Trump International Hotel expressly in order to curry favor with the President. The matter first came before Judge Messitte, who has been a Federal Trial Judge for 25 years (for 8 years before that a State Court Trial Judge), to decide whether the State of Maryland and the District of Columbia had “standing,” to pursue the claim. In an earlier Opinion, the Judge decided that they did. The issue then became, what did the word “emolument” mean? Very few Americans have ever used the word “emolument” in a sentence until now, and most have no idea what it means. As a true scholar, Judge Messitte enlightened us all. The Plaintiffs mustered a mountain of historical evidence including studies of hundreds of dictionaries from the 17th, 18th and 19th centuries that defined the word “emolument” as any “profit,” “gain” or “advantage.” Only a few dictionaries of the same period tied the term directly to employment. And there were numerous other uses of the term by Founding Fathers, legal scholars, and others of the period (e.g. Adam Smith), that were fully in accord with the Plaintiffs’ view. The case was vigorously argued by both the Plaintiffs and the President’s attorneys. Six weeks after hearing oral argument from the attorneys, Judge Messitte issued his 52-page Opinion, adopting the Plaintiffs’ view. The word “emolument,” he concluded, means essentially any “profit, gain or advantage” so that, insofar as the President might be receiving revenues from foreign governments through the Trump International Hotel, Plaintiffs had stated viable claims of violation of the Foreign Emoluments Clause and, insofar as the President might be receiving revenues from State governments staying at the hotel, they had stated a viable claim of violation of the Domestic Emoluments Clause as well. The ruling was immediately hailed as historic and almost universally praised in the national press and other media. Undoubtedly titanic battles lie ahead. What will the defense of the President be? Will he attempt to delay the proceedings by filing an emergency interlocutory appeal? What kind of inquiry (i.e. discovery) will the Plaintiffs be allowed into the financial affairs of the President? He has been notoriously resistant to disclosing any private financial information, including his tax returns. Until President Trump, this sort of information had been invariably provided by all Presidents. These and other questions besides these remain. But it is fair to say that, since Judge Messitte’s ruling, the door has been opened to exploration of possible inappropriate financial activity on the part of the President who, we are reminded, as President Nixon was to learn the during Watergate scandal of the early 1970's, is clearly Not Above The Law.