My prior post explained how the Foreign Emoluments Clause probably would not apply to ordinary business transactions between foreign governments and Donald Trump’s businesses. That post assumed, as a threshold matter, that the Foreign Emoluments Clause, which applies to holders of an “Office of Profit or Trust,” reaches the President. However, as noted in the prior post, whether the President is even subject to the Foreign Emoluments Clause remains unclear. Two great scholars, Zephyr Teachout and Seth Barrett Tillman, recently debated that issue (see here and here), and I strongly recommend their pieces to everyone.

In this post, I want to call attention to opinions issued by the DOJ Office of Legal Counsel, an agency that provides authoritative legal advice to the President and the Executive Branch. Various commentators point to a 2009 OLC opinion examining whether President Obama could lawfully receive the Nobel Peace Prize award and conclude that the Foreign Emoluments Clause will apply to an elected official, like Donald Trump, when he takes office. However, when one reviews the several dozen OLC opinions that mention or discuss the Foreign Emoluments Clause, a much blurrier picture emerges. The OLC has not broadly applied the Foreign Emoluments Clause to elected officials. Rather, it frequently reads the Foreign Emoluments Clause consistently with the Appointments Clause.

During the Reagan Administration, for example, the OLC noted that “this Office seems to have assumed without discussion that the only persons covered by the Emoluments Clause were those holding an ‘Office’ in the sense used in the Appointments Clause.” 6 U.S. Op. Off. Legal Counsel 156, 157 (Feb. 24, 1982). But the OLC then embraced a broader reading, such that appointed officials and subordinates, including the Nuclear Regulatory Commission employee at issue, would come within the Clause. A later opinion under the same Administration also interpreted the Foreign Emoluments Clause broadly, such that it reached anyone exercising law enforcement powers. See 12 U.S. Op. Off. Legal Counsel 67, 68 (1988).

But under subsequent administrations, the OLC adopted a narrower approach. In one opinion, for example, the OLC explicitly rejected the “sweeping and unqualified view” that anyone exercising law enforcement powers came within the clause. 20 U.S. Op. Off. Legal Counsel 346 (Oct. 7, 1996). And in 2005, the OLC faulted the broad approach of its 1982 opinion, stating that “some confusion” resulted when it “abandoned [the] longstanding position that an ‘Office of Profit or Trust’ under the Emoluments Clause was synonymous with an ‘officer of the United States’ under the Appointments Clause.” See OLC Opinion (Mar. 9. 2005).

In 2009, when the OLC addressed the Nobel Peace Prize issue, it stated that the Foreign Emoluments Clause “surely” applied to the President but did not offer a single word of analysis. Interestingly, a 2010 OLC opinion written by the same official who wrote the 2009 opinion (David J. Barron, now of the First Circuit), seems inconsistent with the 2009 opinion. That opinion understood prior OLC opinions as properly applying the Foreign Emoluments Clause to “only those persons considered officers within the meaning of the Appointments Clause,” though in addressing the facts before it, the OLC assumed arguendo that “the Clause may apply in some instances to persons who do not hold an office under the Appointments Clause.” See OLC Opinion (Jun. 3, 2010). No mention was made of the 2009 Opinion.

So what does one make of all this?  After reading the Tillman and Teachout articles, and after going through several dozen OLC opinions, I remain uncertain whether the Foreign Emoluments Clause applies to the President. Nothing I have read presents a “slam dunk” on either side. And no OLC opinion exhaustively addresses, one way or another, whether the clause applies to elected officials. All I know for certain is that the issue is a close one, and that commentators arguing that Trump will clearly violate the Constitution have overstated their case.

As a practical matter, the issues remain sufficiently ambiguous that the OLC can, in good faith, advise Trump that the Foreign Emoluments Clause does not apply to him. Of course, if the OLC believes otherwise, it can point to the 2009 Opinion and the authorities mentioned in the Teachout article to support its conclusion. Additionally, Politico recently revealed a further “stash” of OLC opinions, including at least one that assumed the application of the Foreign Emoluments Clause to President Kennedy. However, based on later OLC Opinions, the Kennedy opinion reflects a historical outlier. See OLC Opinion (Mar. 9. 2005) (the “great majority” of pre-1982 OLC opinions “equated an ‘Office of Profit or Trust’ under the Emoluments Clause with an ‘officer of the United States’ under the Appointments Clause”).

Of course, whether or not the Foreign Emoluments Clause applies to Trump, he should address the potential conflicts of interests raised by his business activities. Professor Bainbridge outlines a helpful framework for building an ethical screen, as does Professor Markovic. It would be nice to see further constructive suggestions like these, and fewer overstatements about the scope and application of the Foreign Emoluments Clause.

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