This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
President-elect Donald Trump is poised to violate the foreign emoluments clause of the Constitution, at least according to the chief ethics lawyer of the George W. Bush administration. The idea is that when foreign officials stay in a Trump International Hotel to ingratiate themselves with the president, they'll be giving him an emolument that is, a form of payment in violation of Article 1, Section 9, Clause 8 of the Constitution. And The Washington Post recently reported that Trump's Washington hotel actively solicited diplomats with a reception that included a tour of a 6,300-square-foot suite that goes for $20,000 a night.
This suggestion prompts three questions, none of which I could have answered without research: What the heck is the foreign emoluments clause? Does it cover Trump's conduct? And if it does, who, if anyone, can bring a case in court to do anything about it?
The clause itself says that "no Person holding any Office of Profit or Trust under [the United States], 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." I teach constitutional law for a living and am the co-author of what my publishers assure me is the leading constitutional law casebook; let me tell you, I've never given the foreign emoluments clause more than a moment's thought before.
The framers didn't spend much time on it, either. They cribbed the language almost verbatim from Article VI of the Articles of Confederation, altering it only to add the exception for the consent of Congress and to leave out state offices, which the Articles covered.
The idea behind the clause is pretty intuitive: If federal officials can be compensated by foreign governments, they can be bought. The worry went back to England, where France paid many Parliament members and other government officials in the 17th century. It was also relevant to the framers' world. General James Wilkinson, a Revolutionary War veteran who later held the highest rank in the U.S. Army from 1800 to 1812, was for much of that time a paid agent of the kingdom of Spain not that anyone knew it until later.
It's pretty clear that the clause was intended to stop foreign governments from currying favor with federal officials through gifts. In spirit, therefore, it would prohibit Trump from taking favor-currying gifts.
But what about the letter of the law? Trump's hotel, after all, may be overpriced, but its guests would get beds and a roof over their heads. Their payment therefore isn't a gift. Is it an emolument?
The answer is a qualified yes. Richard Painter, Bush's ethics lawyer, has said that government officials may legally engage in ordinary business transactions such as the sale of an automobile or real estate at face value to a foreign government, but that the Constitution would be violated by a sweetheart deal or special benefits for the official.
I think the clause covers hotel rooms, even without special benefits. An "emolument" in 18th century English didn't just mean a free gift. It included ordinary compensation for services or other profit, such as salary or fees. A hotel room rented with the goal of profit should count.
On my reading, then, Trump can't receive any direct payment of any kind from a foreign government, including a fee for services. But suppose he does it anyway. Who has the authority to stop him?
Here things get pretty murky. To go to federal court and allege a violation of the Constitution, you must have standing which means you need to have suffered a concrete injury as a result of the unlawful conduct. And you need a statute that authorizes your lawsuit.
It's been suggested that competing hotels would be injured by Trump's hotel taking their business, and that this would give them standing to sue. Maybe, although a court might not accept this theory of standing. The point of the clause isn't to protect against competition, and the other hotels aren't injured by Trump transacting with foreign governments per se.
Even if the hotels do have standing, there isn't an obvious federal law to authorize a suit. The competitors' constitutional rights haven't been violated, so they can't use 42 U.S.C. Sec. 1983, the statute that allows for such suits.
If no private party can sue, that leaves Congress, which could treat the receipt of foreign emolument as a high crime or misdemeanor and therefore as grounds for impeachment. Under this Congress, that seems unlikely.
What that leaves is public pressure to enforce the clause. Trump should take that pressure seriously, and divest himself from any business of any kind with foreign governments. Hotel rooms may be small potatoes. But other businesses may be bigger and the Constitution matters, even if it isn't easily enforceable in court.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.