No “Greasing of Palms” with the Emoluments Clause

The U.S. Constitution

By: Betsy Lizotte. Photos: Washington State House Flickr

The word emoluments may sound a little like the word emollients, which refers to softening and moisturizing ingredients in many hand creams. While emoluments and emollients are different words, and emoluments might not have a direct relationship with hand cream, the Foreign Emoluments Clause of the United States Constitution prohibits foreign powers and governments from “greasing the palms” of those holding political office and power in America, including the President of the United States.

Specifically, Article 1, Section 9, Clause 8, of the United States Constitution states:

[A]nd no person holding any office of profit or trust under them [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.”

Over the past year, there have been many news reports about whether or not President Donald Trump has been violating the Foreign Emoluments Clause of the U.S. Constitution when foreign governments use his hotels to stay and conduct business while they are lobbying the U.S. government or seeking access to the president or his staff.

There has also been controversy over a white paper filed by the law firm of Morgan, Lewis & Bockius on behalf of Trump, that declares, “Neither the Constitution nor federal law prohibits the President or Vice President from owning or operating businesses independent of their official duties, as a careful textual and historical analysis shows,” and that “these laws have historically not applied to the President or Vice President.”

In response to the assertion that the constitutional prohibition of conflicts of interest does not apply to the president, Citizens For Responsibility And Ethics in Washington (CREW) filed suit against Trump. This controversy was the subject of Marymount’s Constitution Day celebration on Sept. 20. Constitution Day is observed annually on Sept. 17, the anniversary of the date on which the Founding Fathers signed the U.S. Constitution in 1787.

Dr. Cassandra Good, professor of “History of the United States to 1877,” feels that it is important to remember the Constitution and understand the U.S. government.

“Constitution Day is our yearly reminder of America’s founding document,” Good said. “To be fully engaged citizens, it’s vital to understand how our government was established, how it works, and the rights and responsibilities it grants us.  This is particularly true in an election year; Virginia has elections coming up on November 7.”

Good said it was important for students to know about the Constitution’s Foreign Emoluments Clause because it is a term that few Americans are familiar with, and it has “been in the news and is likely to stay there with multiple court cases on the topic.”

To inform students and the Marymount community about the Emoluments Clause, Good hosted Gautham Rao as this year’s Constitution Day guest speaker. Rao is a legal historian who co-authored the amicus brief on the meaning of the Foreign Emoluments Clause for the case CREW versus Donald J. Trump. It was based on the question of whether or not Trump’s business dealings violate the Constitution.

The History and Politics Department held the Constitution Day function in the Gerard Dining Hall. About 90 students and faculty attended the free luncheon. Many of the students attended as part of their course work in classes like “Colonial and Revolutionary America.” Others attended because the topic had “Trump” in the title.

In his presentation at Marymount, Rao stated that the Saudi Arabian government spent $270,000 at Trump Hotel International in a lobbying campaign against a bill that passed President Obama’s veto. It allows American citizens to sue the Saudi government for damages stemming from the 9/11 attacks. In June, several news stories reported on the Saudi expenditures at the Trump Hotel.

“The Trump International Hotel has become a choice destination for foreign governments,” Rao said. “Each time their officials eat, drink, or reside at the Trump International, these governments transfer money directly or indirectly from their coffers to the President’s bank accounts.”

Rao and others, including fellow historians, linguists, and CREW view any funds garnered by President Trump, or his companies, from foreign governments to be a violation of the Emoluments Clause.

Marymount sophomore Becky Lake feels that an American president should be more concerned with taking care of the country than with making money.

“Being president shouldn’t be about making profit, but it should be about making change for the country,” Lake said.

According to Rao, a key goal of the Foreign Emoluments Clause is to prevent a conflict of interest between a United States president, or anyone holding public office, and a foreign government or head of state. As stated by Rao, contextually, when the Founding Fathers were grappling with the Foreign Emoluments Clause, there were several historical cases of heads of state being bribed by other heads of state, including England’s King Charles II who received emoluments from France’s Louis XIV and England’s parliament that had been bribed by the English King. So for Rao, the Emoluments Clause applies to anyone holding public office, including the U.S. president. This is opposite of what the Trump white papers claim.

Rao stated that the Trump white paper makes two erroneous claims: “first, that the emoluments clause did not apply to the office of the President and Vice President; second, that this belief was founded on ‘a careful textual and historical analysis.’”

In his presentation, Rao relayed historical evidence that indicates that the Founding Fathers actually did intend for the Foreign Emoluments Clause to apply to the offices of the president and vice president, and that the evidence that the Trump white paper used was not all-inclusive of available historical evidence.

According to an article published on Aug. 8, 2017,  “Federal court schedules arguments in Trump foreign businesses lawsuit,” by Josh Delk in The Hill, “A U.S. Federal District Court has scheduled oral arguments for October” to hear the case brought on by CREW and three other plaintiffs. The lawsuit claims that President Trump continues to violate the Foreign Emoluments Clause.

This case highlights the relevance of the Constitution to current political affairs. It may have been penned over two hundred years ago, but it is still argued over, discussed, and interpreted today.

Marymount students and faculty were privileged to hear from one of the historical investigators in the case.

“Bringing a historian involved in one of these cases was a chance for students and the broader community to learn in depth about what the word emoluments means and why the founding fathers included the term in the Constitution,” Good said.