In this light, the Morgan Lewis memo’s focus on hotels and unspecified “similar businesses” is arbitrary. The foreign emoluments clause is not limited to hotels; it encompasses any and all benefits that Trump collects from foreign governments. And since the whole Trump Organization is permeated with foreign money—and subject to an endless variety of potential advantages in foreign lands—a serious plan would have accounted for the whole empire, not just its hotels.
Consider the Trump Organization’s many existing overseas investments, loans from foreign-government-controlled banks, sales and rentals of real estate to foreign governments, and foreign benefits that grease the skids in financially valuable ways for its various projects. So long as Trump is both president and privately financially interested, these and other Trump Organization affairs could be magnets for special treatment in commerce, taxation, regulation, and investigation—benefits from foreign powers that qualify as gifts or emoluments.
But even following Morgan Lewis and focusing only on hotels, it’s unclear how “profit” will be defined, for purposes of returning monies to the U.S. Treasury that may constitute emoluments. Does profit mean everything above the actual cost of providing items or services? If so, how are those costs to be defined? If not, what does “profit” mean? And how will the Trump Organization quantify benefits such as the social cachet that may result from a foreign government deciding to host a series of lucrative events at a local Trump property?
Further, the emoluments clause applies not only to foreign states, but also to corporations they own or control. How, exactly, will the Trump Organization identify all such entities?
And by what authority will the U.S. Treasury take possession of the money that Trump Hotels makes in profit from foreign powers? Will the amount be publicly disclosed—and, if so, with what level of granularity?
Of course, public disclosure is a concern for other reasons, too. Based on the Morgan Lewis memo, there will be virtually no accountability or transparency at all. As Isaac Arnsdorf has argued, Trump’s “pledge to separate his private interests from public money depends almost entirely on him and his team following their own rules, with almost a total absence of public disclosure, outside oversight or independent verification.”
In sum, the Morgan Lewis memo—by focusing on hotels and “similar businesses,” and defending only fair-market-value transactions—simply misses a huge part of Trump’s constitutional violation.
But even with respect to this limited set of transactions, the Morgan Lewis memo is lacking.
The fundamental problem is that it loses sight of the purpose of the foreign emoluments clause. As then-Assistant Attorney General Samuel A. Alito, Jr. emphasized in 1986, the “answer to [an] Emoluments Clause question must depend [on] whether the [arrangement] would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition.”