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February 26, 2018

Lesson 5: The Emoluments Clause of the Constitution

Is Donald Trump violating the emoluments clause of the Constitution, as some people claim or suggest?

The reference is to the last clause in Article I, Section 9, of the Constitution, which reads: “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.”

“Emolument” is not a word that frequently comes up in conversation, or even in learned discourse. It’s a Latin derivative, the first usage of which as an English word is dated by the Oxford English Dictionary as in 1480. The OED’s primary definition is:

“Profit or gain arising from station, office, or employment; dues; reward; remuneration; salary.” An alternative definition (“Advantage, benefit, comfort.”) is listed as obsolete.

The Framers lived in a European culture in which titles of royalty and nobility were common, and where holders of such titles tended to occupy most high positions in government. But they do not seem to have regarded profits or receipts received in the ordinary course of business with foreign state entities, however, as forbidden “emoluments.”

The chief evidence for this proposition is the identity of the man whom they saw each day in the chair at the head of the Constitutional Convention, George Washington, the man they assumed would be the first president if the document they were writing were ratified. Washington was one of the richest planters in Virginia, a businessman who sold crops and products to foreign buyers. Ships could tie up at his dock on the Potomac at Mount Vernon, as at many plantations, and sail directly to London. His receipts might plausibly be expected to come from foreign buyers and perhaps foreign governments.

The same could be said of other antebellum presidents with major plantation businesses, including Thomas Jefferson, Andrew Jackson, John Tyler and Zachary Taylor. Post-Civil War presidents with significant inherited or earned wealth and investments in firms receiving foreign income include Theodore Roosevelt, Herbert Hoover, Franklin Roosevelt and John Kennedy. Multiple presidents who have written books undoubtedly received royalty income from sales to foreign embassies, governments, and government-owned businesses.

Income realized from government purchase of Trump hotel rooms or of advertisements on reruns of Trump television programs would seem to fall in the same category. The Framers did not expect federal officeholders to abandon their business interests, and they were quite aware that ordinary business transactions cross national boundaries.

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February 26, 2018