More often than not, the president can invoke some kind of executive-branch logic to defend his right to do what he wants. However implausible the argument, sweeping Article II rhetoric can be used to apply an institutional gloss to acts of even blatant personal caprice. The president may ask a foreign power to investigate his political rival—as part of his conduct of foreign relations. The president may fire lifelong civil servants for a perceived slight or inadequate personal loyalty—because the “unitary” executive power places the executive branch under his total control. The president can decline to cooperate with a Justice Department investigation into election interference or direct his Cabinet and staff not to respond to congressional subpoenas—to protect his ability to have candid communications with his advisers under executive privilege.
But in extraordinary cases, presidential action eludes all constitutional cover. These are cases in which the interests of the person and the interests of the office unequivocally diverge. The quintessential example: personal dealings that raise the specter of corruption. Asserting the president’s right to engage in private conduct that creates even the perception of self-enrichment serves the man but in obvious ways diminishes the trust, prestige, and, in the long run, power accorded to the institution. In general, such cases are properly handled by the president’s personal lawyers—not by the Justice Department, whose client is not the president but the United States of America, and not by the White House counsel, whose job is to support the presidential office and, by extension, serve the public trust.
Yet since the first year of Donald Trump’s presidency, the Justice Department has defended him against three federal anti-corruption lawsuits filed in New York, D.C., and Maryland. These private suits highlight the profits Trump is reaping from government representatives from around the country and the world—for example, the embassy of Kuwait moved its annual National Day celebration to the Trump International Hotel starting in 2017—and allege that by refusing to step away from his business empire, Trump is benefiting from his office in violation of two constitutional provisions that forbid the president from accepting “emoluments” from either foreign dignitaries or U.S. federal and state governmental entities. (The foreign-emoluments clause bars federal officials, including the president, from accepting emoluments from foreign countries without Congress’s consent. The domestic-emoluments clause applies specifically to the president and forbids him from receiving emoluments other than his fixed salary from the federal or any state government while in office.)
The emoluments cases are difficult for the plaintiffs to win, not because their interpretation of the clauses is wrong, but because getting that interpretation considered in court requires first showing they are the right people to bring the case. In legal parlance, the question is whether they “have standing” to allege an injury caused by the president’s businesses. That’s why in February, the U.S. Court of Appeals for the D.C. Circuit threw out a lawsuit brought by House and Senate Democrats challenging the president’s business dealings. The court ruled that only Congress as a body, not individual members, can assert an interest in regulating the president’s acceptance of foreign emoluments. Last July, three judges on the Fourth Circuit similarly dismissed another emoluments suit, brought by the District of Columbia and the state of Maryland, on standing grounds.
But earlier this month, a decision by the full 15-judge bench of the Fourth Circuit revived the Maryland case. The judges wrote narrowly, holding that the president has to wait for a final judgment from the district court before appealing its preliminary ruling that the plaintiffs have standing to sue him. In effect, however, it’s a momentous decision that allows the plaintiffs to continue their battle in the court below and puts the Fourth Circuit on the same general page as the Second Circuit, which back in September squarely held that the plaintiffs in that case, owners and operators in the hospitality business in New York City and D.C., had standing to sue the president.
As illustrated by the standing issue, in the Supreme Court showdown likely to come, all of the plaintiffs face technical hurdles that could prevent them from ever getting their main arguments heard. But the Justice Department faces a wholly different challenge—a problem of principle, not procedure. Defending Trump against the emolument suits is not easy, because doing so pits the Justice Department against itself.
Prior to the Trump presidency, no Article III court had occasion to address either of the emoluments clauses. The best established authority on the subject was not a court but the Justice Department—specifically, the Office of Legal Counsel, which assists the attorney general in dispensing legal advice to the president and executive-branch agencies. Over the decades, OLC, along with the comptroller general, who heads the government auditing authority known as the Government Accountability Office, has publicly released numerous internal opinions that puzzle out the question of what constitutes an emolument to determine whether government officers can lawfully accept payments or gifts from individual states or foreign countries.
These opinions are guided by the same principle voiced by the Founders when embedding into the Constitution safeguards to protect the country against improper influences: The emoluments clauses are, at their core, national-security protections designed to prevent the financial interests of federal officeholders from becoming enmeshed with and compromised by foreign or domestic government powers. As Alexander Hamilton put it in “Federalist No. 73,” the clauses ensure that the president has “no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.” So it’s unsurprising that in opinion after opinion, the Justice Department, as well as the comptroller, has insisted on interpreting these clauses in a way that maintains that separation and, in the face of any uncertainty, errs on the side of country first.
To defend Trump’s business holdings, however, the Justice Department has been forced to reinterpret its own opinions in the narrowest way possible. Most notably, the department has chosen to argue that “in every published OLC or Comptroller General opinion in which proposed conduct was determined to involve prohibited emoluments, the determination involved an employment relationship (or a relationship akin to an employment relationship) with the foreign government.”
This is, to start, untrue. For example, in a 1962 opinion, OLC concluded that immigration officials and White House staff—and their wives—could not accept the Italian government’s invitation for an all-expenses-paid trip to Italy, because the foreign-emoluments clause “in the past has been strictly construed” as “being directed against every possible kind of influence by foreign governments over officers of the United States.” The proposed trip was not Italy’s attempt to employ U.S. officers in any capacity; it was a free vacation “offered as a sign of good will and a token of friendship.” OLC decided it was a present and possibly a prohibited emolument because it potentially placed “United States officials in a position of obligation to a foreign power.” And OLC concluded that to permit the officials to accept without congressional consent “certainly would be inconsistent with [the] spirit” of the clause.
But putting aside this significant inaccuracy and even accepting that most of the OLC and comptroller opinions deal with an “employment relationship,” the Justice Department’s attempt to wring overriding significance from this fact makes for a creative and counterintuitive reading. The opinions don’t explicitly put any stock in whether the state or foreign government seeks to employ U.S. officers, as opposed to influencing them by other means. Common sense and context suggest that the opinions tend to address the problem of paid employment only because most officers facing tricky emoluments questions have been career professionals; they have been offered payment for their personal skills and expertise, not for the services and goods they sell by way of a global real-estate and retail empire.
That said, the Justice Department’s prior opinions do have something in common. Just about all of them defend their conclusions with a clear-eyed assessment about the spirit of the constitutional prohibitions and whether the alleged emoluments under scrutiny could violate that spirit by influencing the officeholder.
For example, a 1986 OLC opinion by then–Deputy Assistant Attorney General Samuel Alito considered whether a NASA employee could accept a $150 fee for reviewing a doctoral candidate’s thesis for a public Australian university. He considered but ultimately declined to get into some of the complicated definitions that come into play when interpreting the foreign-emoluments clause—for example, does a public Australian university constitute a “foreign state”? The real question, he decided, was whether the review fee raised “the kind of concern … that motivated” the drafting of the emoluments clause. And he concluded the fee was acceptable only because “we do not believe that it presents the opportunity for ‘corruption and foreign influence’ that concerned the Framers.”
In a 1981 opinion, OLC determined that President Ronald Reagan could accept a state pension, which he had earned from his time serving as governor of California. OLC reasoned that this was a “pension in which he acquired a vested right 6 years before he became President, for which he no longer has to perform any services, and of which the State of California cannot deprive him.” In short, receipt of the retirement benefits did “not violate the spirit of the Constitution because they d[id] not subject the President to any improper influence.” In a later opinion on the same subject, the comptroller general ran the same reasoning and came to the same conclusion, observing that the pension “cannot be construed as being in any manner received in consequence of his possession of the Presidency” and that “it is highly unlikely that the president could be swayed in his dealings with the state of California by having the pension diminished or rescinded by the state.”
One especially illuminating emoluments opinion is a 1993 analysis by Walter Dellinger, who headed OLC under the Clinton administration. Dellinger concluded that law-firm partners serving as nongovernment advisers to the Administrative Conference of the United States, an office of trust, could not accept partnership earnings “where some portion of that share is derived from the partnership’s representation of a foreign government.” To reach this conclusion, Dellinger dismissed possible technical arguments for why the payments didn’t count; for example, he found it irrelevant that the payments were paid out by “commercial entities owned or controlled by foreign States,” rather than directly from the foreign states. He explained that the “sweeping and unqualified” language of the foreign-emoluments clause contained “no express or implied exception for emoluments received from foreign States when the latter act in some capacity other than the performance of their political or diplomatic functions.” Animating the logic of earlier OLC opinions with his particular take on the threat, he concluded that what mattered was whether the payments could influence the officeholder: “Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government, even when those benefits took the form of remuneration for academic work or research.”
The most striking feature of all these Justice Department opinions is how easy they are to understand. This is in sharp contrast with the many briefs filed by DOJ in the current emoluments suits to defend the president’s right to profit from his businesses, which consist of hundreds of pages expounding on definitions from the founding era and drawing conclusions from the snuffbox Benjamin Franklin accepted from France and the horse John Jay accepted from Spain.
Of course, the earlier OLC memoranda also do a little historical excavation. But they all eschew long-winded recitations of colonial dictionary entries in favor of a commonsense inquiry into what makes for a prohibited emolument. Could the alleged emolument affect the recipient’s feelings toward the giver? Could it compromise the office? Could it corrupt? For decades, these are the questions that mattered to OLC. And they remain the relevant considerations for assessing whether the president’s money-making activities divide his loyalties and put the country at risk.
Concern for these issues is conspicuously missing from the Justice Department’s voluminous briefing defending Trump’s ability to reap business profits. For obvious reasons, the Justice Department cannot and does not even attempt to assert that the money flowing into the Trump Organization’s coffers for the past four years “does not violate the spirit of the Constitution because [it does] not subject the President to any improper influence.”
Back in November, Cory Doctorow, the science-fiction author and co-editor of the blog Boing Boing, offered a tidy, genre-defying definition of corruption: “It’s when truth seeking exercises are suborned by parochial interests, rather than regulated in the public interest.” Doctorow was talking about the particular problems presented by conspiracy theories, but his description just as usefully captures the stakes of the Justice Department’s litigating position as an entity invested with the public trust. Does the department’s interpretation of the Constitution’s prohibitions on emoluments serve the president’s parochial interests or the public interest? Historically, the Justice Department has insisted on the importance of that question. Today, it refuses to even ask it.
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