The Foreign Emoluments Clause and the Chief Executive

Source: Andy Grewal, University of Iowa, Legal Studies Research Paper No. 2017-12, February 3, 2017

From the abstract:
The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting “emoluments” from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read “emolument” as referring to any payment received from a foreign government, such that even a diplomat’s payment of a room reservation fee at the Trump Hotel establishes an impeachable offense.

This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that “emoluments,” as used in the Foreign Emoluments Clause, refer to payments from a foreign government made in exchange for the U.S. Officer’s performance of services (office-related compensation). The term does not refer to any and all payments from a foreign government.

Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. The Office of Legal Counsel and Comptroller General have struggled with the issues, but their approaches suffer from conceptual flaws. This Article proposes an alternative three-part business entity test to help analyze the problems.

After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.