With the recent news that two Republican electors are refusing to vote for Donald Trump, we have been inundated with inquiries asking whether other electors should decline to select Trump because of a particular constitutional issue. It’s one we worked on when we were advising Presidents Bush and Obama, respectively: the Emoluments Clause.
Every elector must search his or her own conscience, but after a blizzard of reporting on the president-elect’s foreign business relations in recent days, it appears that Trump will be in violation of this clause of the Constitution from the moment he takes office—and the plan for his business that he hinted at on Twitter last week does not solve the problem.
The Emoluments Clause of the Constitution stemmed from one of the Founders’ core concerns: foreign influence over our nation’s affairs. They worried that their new republic would, like the colonial governments the Americans had overthrown, once again come under the thumb of foreign rulers—if not by force of arms, by artifices of corruption. The term "emolument" comes from the Latin emolumentum, meaning profit or advantage, and emoliri, meaning to bring out by effort.
By 1789, the founders had seen enough of the way foreign rulers corrupted their own officials and those abroad. The British Crown plied elected members of Parliament with stipends and other emoluments intended to induce them to do the King’s bidding rather than serve the people who elected them, while the French King sent expensive gifts—including portraits framed with diamonds—to American officials to curry favor.