Last week, a federal district court heard oral arguments in CREW v. Trump. No transcript or audio recording of those arguments is currently available, but persons who attended the hearing noted the wide range of issues discussed. (See Josh Blackman’s Blog, Slate, WSJ, and NYT). Because the litigation is at the motion to dismiss stage, procedural arguments took up a substantial amount of time. But Judge Daniels also reportedly asked the DOJ several questions about its definition of “emolument.” The relevant exchanges apparently did not go as well as they could have, with Judge Daniels expressing dissatisfaction over the government’s responses to various hypotheticals.

Not having attended the oral arguments, I cannot pin down the source of disagreement between Judge Daniels and the DOJ. However, the problems I previously identified with the DOJ’s opening brief may have haunted it at oral arguments. See Grewal, Three Reactions to the DOJ’s Brief in CREW v. Trump, Yale J. on Reg.: Notice & Comment (Jun. 10, 2017) (Point 3). Specifically, the DOJ seems to have overlooked subtle differences between the Foreign Emoluments Clause and the Domestic Emoluments Clause, because its brief says that each is concerned with compensation “based on official position.” P. 27. However, only the Domestic Emoluments Clause contemplates an analysis regarding the connection between a payment and the Presidency. The Foreign Emoluments Clause applies broadly to any compensation paid by a foreign government to the President for the performance of services, whether or not those services are connected to the Presidency.

A case involving former President Nixon helps illustrate the Domestic Emoluments Clause’s limited scope. See Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992). Nixon had brought a suit seeking monetary relief for the taking of his Presidential papers, but the government argued, among other things, that the Domestic Emoluments Clause would prohibit any federal government payments to him. The district court, on remand, sided with Nixon’s estate, emphasizing, among other things, that the papers were owned by Nixon personally and “were not transferred to him by the government as compensation for his service in office.” Griffin v. United States, 935 F. Supp. 1, 6 (D.D.C. 1995). Thus, any amount that Nixon (or his estate) would receive from the sale of those papers, or as recompense for their unlawful taking, would “not constitute an emolument.” Id. The Comptroller General adopted a similar approach when he concluded that the Domestic Emoluments Clause prohibits a state’s payment of compensation to the President only when that payment is connected to the Presidency. See Letter from Milton J. Socolar, Special Assistant to the Comptroller Gen., to George Mitchell, U.S. Senate (Jan. 18, 1983).

The Foreign Emoluments Clause operates differently and does not turn on whether an official is receiving compensation for services related to his U.S. position. That clause instead prohibits any and all compensation regarding his services relationship with a foreign government. See, e.g., Memorandum from J. Lee Rankin, Assistant Attorney Gen., Office of Legal Counsel, to S.A. Andretta, Admin. Assistant Attorney Gen. 8 (Oct. 4, 1954) (Foreign Emoluments Clause “was intended to cover compensation of any sort arising out of an employment relationship with a foreign state”). Thus, the Foreign Emoluments Clause has frequently been applied to compensation for the provision of services that have nothing to do with the recipient’s official position with the United States. See Grewal, Exploitation of Public Office and the Foreign Emoluments Clause, Yale J. on Reg.: Notice & Comment (Jul. 4, 2017).

The DOJ’s brief muddles the analysis, saying that the Foreign Emoluments Clause “prohibits benefits arising from services the President provides to the foreign state either as President (e.g., making executive decisions favorable to the paying foreign power) or in a capacity akin to an employee of a foreign state (e.g., serving as a consultant to a foreign power).” P. 29. In drafting the first part of that description (i.e., the part referring to the President’s executive decisions), the DOJ probably drew from principles regarding the Domestic Emoluments Clause. But again, though the Domestic Emoluments Clause is focused on compensation related to the Presidency, its foreign counterpart is not — it broadly reaches all compensation for services performed.*

The DOJ’s conflation of the two clauses might explain its struggles with a treaty-based hypothetical posed by Judge Daniels. Specifically, the judge asked whether a $1 million foreign government payment to President Trump would qualify as an emolument. The DOJ argued that it would not, though it could qualify as an unconstitutional present.**

Judge Daniels rejected the “present” characterization, sounding certain that the payment would be an emolument. But the DOJ’s position during oral arguments was correct — since Trump would not have entered into a services relationship with a foreign government, no emolument could arise. See Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. — (Dec. 2017). Nonetheless, Judge Daniels’ approach is entirely understandable, given that, under the definition offered in the DOJ’s own brief, the $1 million payment would be an emolument (that is, it would be a payment for “making executive decisions favorable to the paying foreign power”).

In its future briefs and oral arguments, the DOJ should finesse its position. It should indicate that the word “emolument,” used anywhere in the Constitution, refers to compensation paid for services performed. It should then state that the language of the Domestic Emoluments Clause shows that its prohibitions apply only to compensation paid to the President for services provided in a Presidential capacity. For the Foreign Emoluments Clause, the DOJ should state that that clause’s prohibitions apply to compensation for services provided by the President in any capacity. A failure to emphasize this difference could lead to analytical confusion, as demonstrated by the oral arguments in CREW v. Trump.

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* The government’s description is incorrect for another reason. If a public official is paid to make a government decision, that payment would qualify as a bribe, not an emolument.

**The treaty-related payment would be properly characterized as a bribe, but bribery questions apparently did not arise in this exchange.