My prior post explained how ordinary business transactions between foreign governments and the Trump Organization would not automatically create violations of the Foreign Emoluments Clause regarding President-elect Trump. That post concluded that the term “emolument” refers only to payments made in connection with the performance of services (whether as an officer or employee), and does not refer to any conceivable foreign government payment. The prior post relied on Supreme Court opinions, Office of Legal Counsel opinions, definitions in legal dictionaries, and so on.
However, some commentators, most notably Professor Richard Painter (Minnesota) and Norm Eisen (Brookings Institution), have argued for a much broader definition of emolument. The legal basis for their interpretation remains unclear because they make no mention of Supreme Court opinions, OLC opinions, Comptroller General opinions, legislative enactments, or other legal authorities, but their article in The Atlantic defines emoluments as reaching “anything of value.” (Their longer Brookings Institution report, co-authored with Professor Larry Tribe, takes a similarly broad approach without citing or examining relevant authorities. See page 11.) This post explains how their interpretation, if accepted, would support the impeachment of President Obama.
To understand why this is so, one should note that the term “emolument” appears multiple times in the Constitution. Regarding President-elect Trump, commentary has focused on the Foreign Emoluments Clause, but the Constitution also contains a Domestic Emoluments Clause. The Domestic Emoluments Clause provides, as relevant here, that the President shall receive a fixed compensation for his services, but “shall not receive . . . any other Emolument from the United States.” This clause guards against, among other things, the legislature compromising the President’s independence by offering him additional emoluments. See Alexander Hamilton, Federalist No. 73.
Under Eisen, Painter and Tribe’s definition of emolument, President Obama has violated the Domestic Emoluments Clause. The President’s financial disclosures reveal that he owns United States Treasury bonds, and that he has received interest payments from the United States. See Page 3 of 2015 Disclosures (reporting between $500,000.00 and $1,000,000.00 of Treasury bonds held by Obama directly or through an IRA). The interest income paid by the United States to President Obama is not part of the fixed compensation attached to the Presidency. Consequently, if an emolument includes any payment, Obama’s receipt of interest income from the United States violates the Domestic Emoluments Clause. Under Eisen, Painter and Tribe’s definition of emolument, President Obama must be impeached.
But one might argue, for whatever reason, that interest income should be excepted from the definition of emolument. However, Professor Painter specifically points to payments from banks as a constitutional problem. See Mother Jones, Nov. 11, 2016 (Painter: “[P]ayments from banks controlled by foreign governments would fall under the emoluments clause.”). And if interest income from the Chinese government is prohibited under the Foreign Emoluments Clause, it’s hard to see why interest income from the United States government would not be similarly prohibited under the Domestic Emoluments Clause.
One might alternatively argue that the Domestic Emoluments Clause should receive a more lenient, President-friendly interpretation than the Foreign Emoluments Clause. But it’s again hard to see why this is so. Unlike the Foreign Emoluments Clause, the Domestic Emoluments Clause is absolute. That is, Congress can approve a U.S. officer’s acceptance of an emolument by a foreign government, but the President is flatly prohibited from receiving any emolument from the United States, other than his fixed compensation. In this respect, the Domestic Emoluments Clause is tougher, not weaker, than the Foreign Emoluments Clause. And the Domestic Emoluments Clause specifically applies to the President, whereas it is debatable whether the Foreign Emoluments Clause applies to him. See What DOJ Opinions Say About Trump and the Foreign Emoluments Clause, Yale J. Reg. Notice & Comment (Dec. 7, 2016).
Of course, under a sensible definition of “emolument,” President Obama should not be impeached. My prior post explained that emoluments include only payments received as compensation for services provided as an officer or employee, and under this approach, the interest income that Obama receives on account of his Treasury bills does not relate to his services as President. Rather, he receives interest income from the United States in his capacity as a creditor, and the Domestic Emoluments Clause should not apply to that interest income. For similar reasons, the Foreign Emoluments Clause should not automatically apply to interest payments received by Trump from foreign governments.
This is not to say that President Obama or soon-to-be President Trump could properly take any interest payment from the United States or from a foreign government. If the prevailing interest rate on the Treasury bills held by Obama paid 2% interest, but President Obama obtained an above-market rate of interest (say, 5%), that would provide some evidence that Obama had extracted a prohibited emolument. (I do not mean to suggest that Obama would do such a thing — he strikes me as a person of exceptional integrity. However, this hypothetical helps further the legal analysis here.)
Regarding President-elect Trump, the analysis would be similar. If he, through his business, receives an above-market interest payment from foreign governments, that would provide a sign that he is profiting from providing services to a foreign government, and is not simply being compensated for the loaning of funds. But where transactions involving the Trump Organization are conducted at arm’s length, no emolument arises.
Of course, this is all hypothetical, because it is exceptionally unlikely that Congress will conduct impeachment proceedings against soon-to-be President Trump (or against President Obama, for that matter). However, in the unlikely circumstance that impeachment proceedings begin against Trump, his critics will have given him a rhetorically clever defense. Trump’s lawyers can use the approach of Eisen, Painter and Tribe to show that Obama received prohibited emoluments, and that Trump should not be impeached — he simply followed President Obama’s precedent.
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For my full-length law review article on the relevant issues, please see here: The Foreign Emoluments Clause and the Chief Executive.
This post was last updated on 1/30/17.