Donald Trump rocked the establishment by winning the presidency, and there have since been many calls for President Trump’s impeachment. Ignoring all those without even the pretense of a valid reason or evidence leaves three categories of attempts: Trump/Russia collusion (treason), Trump must be insane (Amendment 25), and violations of the Emoluments Clauses. In the most recent example, the Attorney Generals for both DC and Maryland are suing President Trump because they believe his businesses violate both the foreign and domestic Emolument Clauses in the Constitution. However, the Department of Justice disagrees. Reuters reports:
Payments to Trump’s hotels do not qualify as a violation of the emoluments clause, which is intended to cover personal services performed by the president, the government said.
“If the Justice Department is correct, the emoluments clause has no meaning whatsoever,” said Frosh, the Maryland official.
“The president can stand over here with his president of the United States hat and he’s not allowed to take payments. But he takes a step over here and puts on his businessman hat, they can funnel as much money to him as they want.”
The Washington Post has a copy of the forty-eight-page lawsuit, which accuses President Trump of a number of offenses against the Constitution. In response, the Department of Justice has issued a seventy-page brief explaining in detail – with far better-referenced examples and reasons – why the courts should toss out the lawsuit. There are a number of problems with the suit, but the primary claim is that President Trump’s businesses receive money by representatives of foreign governments in return for goods and services and that this constitutes emoluments. This is the primary issue all such Emoluments Clause cases thus far have taken with the president, and a close examination of the actual wording in question shows that it is incorrect. Transcripts of and articles relating to the Constitution abound online, but a reliable transcript can be quickly found at the National Archives. Article I, Section 9, paragraph 8 – more commonly referred to as the Foreign Emoluments Clause – states:
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 any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Article II, Section 1, paragraph 7 – more commonly referred to as the Domestic Emoluments Clause – states:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
It is important to note – as the Department of Justice does – the meaning of the word emolument, as it is the only term prohibited in the clauses that is not commonly used today. Merriam-Webster defines it as “the returns arising from office or employment usually in the form of compensation or prerequisite,” and includes an archaic reference to advantage. It is a Middle English word derived from the Latin “emolumentum advantage, from emolere to produce by grinding,” and was used at the time of the Constitution’s writing as it is now. It has been used consistently to mean some form of payment specifically for employment or office held by the recipient. The key is that it only applies to employment compensation.
The problem with this case is that the Emoluments Clauses do not prohibit the president or anyone else from profiting from their businesses while in office. Payment for goods and services rendered do not constitute gifts, emoluments, offices, or titles of any kind. The plaintiffs seem to argue that “of any kind” expands the definition of emoluments to include any advantage gained in any way, but there is no support for this in the word’s definition, origin, or even its contemporary contextual usage. Furthermore, redefining emoluments in such a way makes the rest of the clause redundant. Why explicitly forbid presents, office, or titles if they’re all included in the term emoluments? Why then include the words “of any kind” at the end? It specifies that the Constitution doesn’t specify any exceptions to the clause.
Even if this expanded definition were viable, the Justice Department cites many examples throughout U.S. History that demonstrate the Emoluments Clauses don’t apply to business income. George Washington, Thomas Jefferson, James Madison, and James Monroe all profited from private holdings dealing both domestically and abroad while in office. Perhaps the most notable example is Charles Pinckney. He maintained half a dozen plantations in South Carolina while holding various public offices, and is the man credited with proposing the Foreign Emoluments Clause in the first place! While current Trump detractors point to the president’s refusal to divest himself entirely of his private businesses and complain that his sons give him regular reports, they say nothing about George Washington, who required weekly reports from his farm and even wrote detailed instructions and business plans from the presidential office. Interestingly enough, no concern was raised about President Washington’s business dealings – or the dealings of any other official of old listed here – either then or now. The plaintiffs attempt to argue the intent of the Framers, but these men were alive at the time – some of them were the Framers!
The Department of Justice attacks the lawsuit from several angles, yet only the definition of emoluments and the examples listed above are needed to refute it entirely. However, the concern that President Trump’s business deals could create conflicts of interest is understandable. It could be tempting to grant political favors to foreign entities in return for business profits. The case accuses him of just that more than once and raises concern specifically that foreign missions buying real estate from Trump’s companies will convince the president to favor them. However, a look at how the president has recently treated Qatar – a nation whose permanent mission to the U.N. bought property in Trump Tower – could prove this fear unfounded.
Despite understanding the Emoluments Clauses better than the Attorney Generals of DC and Maryland apparently do, President Trump has promised not to keep any profits gained from his private businesses arising from being the president. He has pledged to donate them to the U.S. Treasury, which is exactly what officials have traditionally done with gifts and payments that might violate the Emoluments Clauses. Many argue that he will renege on that promise, but they apparently forget how he kept his promise to donate his presidential salary too. Will Donald Trump make good on his unnecessary promise to give that money to the Treasury? Only time will tell, but that’s not the real issue here. The reason for this case is the same as all of the others. These people don’t want Donald Trump to be president, and like spoiled children, they’re willing to do just about anything – no matter how ridiculous – to get their way.