As Congress Ramps Up for Impeachment, It Should Include Trump's Foreign Emoluments Violations In drafting Articles of Impeachment, the House should not overlook what may be Trump's most egregious violation of the Constitution's text flatly ignoring the clear requirements of the Foreign Emoluments Clause.

By Ben Fe uer

a II a

December 09, 2019 at 11 :24 AM

Ben Feuer, California Appellate Law Group

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The House will soon vote to impeach President Donald Trump for threatening to withhold

military aid to Ukraine unless the embattled nation investigated a long-debunked corruption

allegation against a political opponent's son. It's the sort of offer-you-can't-refuse demand

for personal benefits in exchange for fu lfilling a public duty that would, with anyone else, be

a Vito Core lone-level violation of federal bribery and extortion laws. Or perhaps, given how

clumsily it was handled, Fredo-level.

In drafting Articles of Impeachment, however, the House should not overlook what may be

Trump's most egregious violation of the Constitution's text: flatly ignoring the clear

requirements of the Foreign Emoluments Clause.

Article I, Section 9, Clause 8 of the Constitution prohibits any person "holding any Office of

Profit or Trust" of the United States from accepting "any present, Emolument, Office, or Title,

of any kind whatever'' from a "foreign State" without "the Consent of the Congress." In other

words, the President and other federal office-holders may not accept presents, jobs, tit les of

nobility, or "emoluments" without first disclosing the offer to Congress and obtaining

Congress's approval.

Former U.S. Solicitor General Walter Dellinger and I represent a bipartisan group of 20

former members of Congress- Californians like Barbara Boxer and Henry Waxman along

with national figures like Gary Hart, Tom Harkin, and Chris Shays-as amici curiae in one of

three lawsuits that allege Trump has been accepting foreign emoluments without even

attempting to comply with the Consti tution. That litigation is ongoing, but there's no reason

the House should wait to impeach Trump for violating the Clause.

What is an "emolument'? The word comes from emolumentum, Latin for the payment to a

miller for grinding corn. In the late 18th century, when the Constitution was drafted, the not­

so-uncommon word was understood to mean "a profit" or "advantage," especially in the

context of business. A 1775 pamphlet by Samuel Johnson, for example, described the

"merchant's desire" as "private emolument." The word has similar meaning today but has, of

course, fallen out of regular use.

The Constitution thus directs, simply enough, that anyone who holds a federal office must

get congressional clearance before accepting business profits from a foreign state.

The Founders' primary concern was that much wealthier European countries might bribe

American presidents and ambassadors, who they feared might not be as loyal to their

nation as European royalty was. They were so concerned about this kind of potential foreign

corruption that they included a catchall provision-banning foreign emoluments "of any

kind whatever." That broad language led constitutional convention delegate Edmund

Randolph to declare it "impossible to guard better against corruption," and Joseph Story to

describe the Clause as eliminating "foreign influence of every sort."

Past presidents and holders of lower federal office scrupulously complied with the Foreign

Emoluments Clause. Of course, none had the type of sprawling international business

Trump has. which means that when the Clause has come up, it's mostly had to do with gifts.

In 1840, for example, the Imam of Muscat offered President Martin Van Buren horses,

cashmere shawls, a box of pearls, and a sword. Van Buren told the Imam about "a

f undamental law of the Republic which forbids its servants from accepting presents from

foreign States or Princes" and submitted the offer to Congress, which directed the gifts be

sent to the Department of State. Similarly, in 1862, President Abraham Lincoln wrote to the

King of Siam to decline a series of presents that included two elephant tusks, an ornate

sword, and a photograph of the King, because "our laws forbid the President from receiving

these rich presents as personal treasures" without Congress's approval.

President Woodrow Wilson refused all foreign medals while in office and during World War I

due to the Foreign Emoluments Clause. In 1963, President John F. Kennedy shelved plans for

honorary citizenship to Ireland, in part because the Foreign Emoluments Clause might have

required congressional approval. In 2009, President Barack Obama invest igated whether his

Nlobel Peace !Prize required disclosure to and approval from Congress; the administrat ion

concluded not because the Nobel Committee not part of a foreign state. Numerous other

presidents and hundreds of lower government officials across the centuries sought and

obtained Congress's approval before .accepting anything of va lue from a foreign

government.

Today, no one is offering Trump a Nolbel prize. But Trump's iconoclasty in maintaining

ownership of his internatiional business empire while serving as President doesn't excuse

compliance w ith the Constitution's clear text- if anything, it's even more of a reason to

demand exacting obedience.

Trump's foreign emoluments violations broadly fall into two types. First, the profits-the

"emoluments"-that the businesses he still owns earn from foreign government spending.

Tru mp's hotels, for example, do brisk sales with foreign states. He earns profit on every

room he rents to them, and some reports suggest that foreign governments are reserving

entire floors of Trump's hotels with no intention of ever using the rooms. Their goal is, of

course, to curry personal favor with the president by indirectly paying him money.

Trump's second foreign emoluments violation is in the long-sought permit s and legal r ights

he's received from foreign governments to benefit his businesses. Shortly after he took

office, for instance, the Chinese government suddenly awarded Trump dozens of valuable

trademark rights he had been fighting to obta in for nearly a decade. Is that a problem? The

Constitution says Congress should decide.

These are just examples of foreign emoluments journalists have uncovered. There are

surely many they haven't, which is why the Constitution requires disclosure.

It's important to note that there are no constitutional limits at all on Trump earning business

profits from foreigners who are not acting at the behest of a foreign government. Nor does

the Foreign Emoluments Clause bar him from renting hotel rooms to foreign governments

or accepting permits and intellectual property rights around the globe, as long as he tel ls

Congress what kinds of profits and valuable rights he's getting from those governments and

obtains Congress's approval before accepting them. During the first two years of Trump's

presidency, when Republicans controlled both the House and the Senate, Congress wou ld

surely have given him any approvals he asked for- he simply had to ask. He didn't.

Today, three lawsuits against the President over his refusal to comply with the Clause are

winding through federal courts. One, in the Fourth Circuit, is brought!: by Maryland and the

District of Columbia on the basis of commercial interests they claim to have in business

conventions being har med by Trump's hotel in Washington. Another, in the Second Circuit,

is brought by a consortium of New York hotels that say they are losing business from

foreign governments because they can't compete with the official influence perceived to

come with staying in Trump's own hotel chain. A third case in D.C.- the case in which I serve

as amicus counsel- is brought by members of Congress who allege they cannot perform

their constitutional duty to vote on foreign emoluments offered to the President because he

refuses to inform them what emoluments he's receiving from foreign states.

The suits variously seek declaratory judgments or injunctions; none ask the courts to

remove Trump from office. For the most part, the Justice Department is opposing the

lawsuits not on the merits but rather on justiciability grounds- that the plaintiffs don't have

standing because they can't show an injury remediable by the courts, and that compliance

with the Foreign Emoluments Clause is a political question the courts should stay out of for

separation of powers reasons.

So far, a three-judge panel on the Fourth Circuit ruled in Trump's favor, but the full court

then took the case en bane; the Second Circuit ruled against Trump and remanded for trial;

and the D.C. Circuit appeal is pending, the district court having ruled for the plaintiffs. Al l

three cases will eventually make their way to the Supreme Court, assuming Trump is stil l in

office by the time that happens. How that court will rule is impossible to predict- Trump is

pretty clearly violating the Constitution's text, but the government's j1usticiability arguments

are far from frivolous.

That and the slow pace of appellate review makes it imperative for Congress to act now with

impeachment. The Constitution is "the supreme law of the land," and breaking the supreme

law surely constitutes an impeachable high crime or misdemeanor. The Founders assumed

a president who received a foreign present or emolument would be so loathed for his

questionable loyalties that impeachment would be all but guaranteed: "No one would say

that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign

pay, without being able to guard against it by displacing him," wrote Gouverneur Morris,

author of the Constitution's preamble.

Of course, this is 2019, and no one should kid themselves-in our era of party loyalty,

there's zero chance the required two-thirds of the GOP-dominated Senate will vote to

remove Trump from office. Senate Republicans are too fearful of an angry Tweetstorm or

primary challenger for conviction to be within the realm of possibility.

Even so, it's hard to blame the Democrats for trying, given the interminable scandals that

have made the Trump White House one of the dampest corners of D.C.'s swamp.

Impeachment for violating the Foreign Emoluments Clause, even absent conviction, wil l

drive awareness of Trump's disregard for the Constitution's text and establish a precedent

that may guide the behavior of future Presidents and Congresses. It will confirm Trump's

actions merit the House's highest form of censure and create a record for posterity.

And it will force Trump's defenders to acknowledge for all of history that when it comes to

Trump's personal enrichment from foreign powers, "America First" means "Constitution

Second."