The founding fathers were quite clear in their language and intent as to the scope and applicability of the emoluments clause as evidenced by their actions immediately after having written it. It's time for this childish nonsense to stop. The precedent has been set in stone from the beginning. The emoluments clause doesn't mean what the progressives "want" it to mean, so move on already!!!!
The ‘Resistance’ vs. George Washington
If a president can’t take emoluments, the founders were crooks.
By
Josh Blackman and
Seth Barrett Tillman
Oct. 15, 2017 6:13 p.m. ET
The Trump administration has been under siege from the left’s self-professed “legal resistance.” Perhaps the highest-profile example involves President Trump himself. Several lawsuits allege that his business interests run afoul of the Constitution’s Foreign Emoluments Clause.
The Justice Department has done a good job defending the president’s actions on most issues—but not on this one. The department still has refused to make its strongest argument: that the Foreign Emoluments Clause does not apply to the president. The Trump administration needs to throw out a 2009 opinionfrom the department’s Office of Legal Counsel that concluded, without any analysis, that the Foreign Emoluments Clause “surely” applied to President Obama. Instead the department should defend the president’s unitary role in the separation of powers—a position the Constitution supports.
The Foreign Emoluments Clause 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.” These lawsuits argue that when foreign dignitaries pay to stay at Trump hotels, they’re putting money in Mr. Trump’s pocket, and such payments constitute an unlawful foreign emolument or a present. But the constitutional clause refers only to persons holding an office under the U.S. The Constitution’s language extends only to appointed positions, not to elected ones.
History backs up this reading. Treasury Secretary Alexander Hamilton set the precedent in 1793: When the Senate requested a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States,” Hamilton’s comprehensive report excluded all elected offices—the president, vice president and members of Congress—but included appointed positions in all three governmental branches.
George Washington accepted, as a diplomatic gift from France, a framed full-length portrait of King Louis XVI. Thomas Jefferson accepted a bust of Czar Alexander I from Russia. Neither president sought Congress’s consent to keep the gifts.
But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.
We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.
Mr. Blackman is a law professor at the South Texas College of Law of Houston. Mr. Tillman is a law lecturer at Maynooth University, Ireland.
The ‘Resistance’ vs. George Washington
If a president can’t take emoluments, the founders were crooks.
By
Josh Blackman and
Seth Barrett Tillman
Oct. 15, 2017 6:13 p.m. ET
The Trump administration has been under siege from the left’s self-professed “legal resistance.” Perhaps the highest-profile example involves President Trump himself. Several lawsuits allege that his business interests run afoul of the Constitution’s Foreign Emoluments Clause.
The Justice Department has done a good job defending the president’s actions on most issues—but not on this one. The department still has refused to make its strongest argument: that the Foreign Emoluments Clause does not apply to the president. The Trump administration needs to throw out a 2009 opinionfrom the department’s Office of Legal Counsel that concluded, without any analysis, that the Foreign Emoluments Clause “surely” applied to President Obama. Instead the department should defend the president’s unitary role in the separation of powers—a position the Constitution supports.
The Foreign Emoluments Clause 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.” These lawsuits argue that when foreign dignitaries pay to stay at Trump hotels, they’re putting money in Mr. Trump’s pocket, and such payments constitute an unlawful foreign emolument or a present. But the constitutional clause refers only to persons holding an office under the U.S. The Constitution’s language extends only to appointed positions, not to elected ones.
History backs up this reading. Treasury Secretary Alexander Hamilton set the precedent in 1793: When the Senate requested a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States,” Hamilton’s comprehensive report excluded all elected offices—the president, vice president and members of Congress—but included appointed positions in all three governmental branches.
George Washington accepted, as a diplomatic gift from France, a framed full-length portrait of King Louis XVI. Thomas Jefferson accepted a bust of Czar Alexander I from Russia. Neither president sought Congress’s consent to keep the gifts.
But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.
We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.
Mr. Blackman is a law professor at the South Texas College of Law of Houston. Mr. Tillman is a law lecturer at Maynooth University, Ireland.
