In an earlier post, I linked to various sources on the precise meaning of the word “emolument.” The CREW lawsuit argues that it is any payment of any kind, by accepting the primary and secondary definitions of the word from that era. This approach makes sense textually. Recall the wording of the clause:
“[N]o person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Article I, Section 9, Cl. 8. (emphasis added).
Some critics of the Emoluments litigation against Trump rely on the primary definitions for emoluments as “office-related” payments. However, the choice of the phrase “any kind whatever” points to the inclusion of secondary definitions, which are broader and apply to any kind of payment. The word “emolument” originally came from the payments to a miller for grinding grains. The Old French emolument meant “advantage, gain, benefit; income, revenue,” derived from the Latin emolumentum, which meant “profit, gain, advantage, benefit.”
A broad definition of emolument makes sense in terms of the text, the etymology, and the contemporaneous use in dictionaries and legal sources, as others have shown. It also makes sense purposively, functionally, and in terms of judicial economy. The purpose of these clauses was to avoid foreign entanglements and domestic entanglements through financial or status manipulation, to avoid corruption. A broad definition serves those purposes. When one becomes president, one is gaining great powers and prestige, which carries tremendous responsibilities. The trade off is reasonable: the gain of power requires the sacrifice of additional profits. A generous salary should be enough. Moreover, in order to avoid unnecessary litigation against a president, a bright line rule is preferable for judicial economy and political economy: no payments from any government entity of any kind.
These questions have never been addressed by the courts. In a thorough and thoughtful paper on SSRN, titled “The Foreign Emoluments Clause and the Chief Executive,” Andy Grewal points to Office of Legal Counsel rulings that establish a body of non-judicial legal prcedents. He argues that “emoluments” are not any kind of payment, but only an office-related payment. Even if a court were to adopt this narrower definition, would foreign payments (or state or federal payments) to Trump hotels be a violation of the Emoluments clause?
Grewal emphasizes two recent cases: Ronald Reagan received a pension from California from his service in state government, and Obama received Treasury bond interest yields. The Office of Legal Counsel concluded that neither payment violated the Domestic Emolument clause.
First, it is crucial to acknowledge the different language between the Domestic and Foreign Emoluments clauses. The Domestic clause does not contain the phrase “any kind whatever,” so perhaps a narrower definition may have been appropriate for federal or state government payments.
Second, there is a clear difference between pensions and bond yields on the one hand, and distinct market transactions for goods and services on the other. Reagan was being treated no differently than any similarly situated private citizen who had worked for California. Obama was being treated no differently than any similarly situated private citizen who had bought bonds. Reagan’s service and Obama’s bond purchase long preceded their offices in the White House. However, the payments to Trump entities, whether hotel rooms, ballroom rentals, or loans, are impossible to separate from Trump’s status as an office-holder and its powers. The exchange of goods or services and payments occurs after he takes office, so the exchange is inextricably linked to the power of the office. Perhaps a court would examine if the foreign official paid over market value to identify if there were any extra payment for the office itself.
Moreover, a purposive analysis of the clause is important. The Framers were attempting to limit both corruption and foreign entanglements. The Bank of China may have been a tenant in Trump Tower before his election, but their tenancy becomes a foreign entanglement with improper influence. The same is true for the cash flow in the holdings overseas in Turkey, etc. These are office-related emoluments in the sense that they can influence the office (or appear to influence the office), unlike treasury bond yields or pension payments.
This analysis seems unnecessarily complicated when broader bright line rules would be warranted from the constitutional text, context, purposes, and practical enforcement: all foreign payments are unconstitutional emoluments.