Jurisprudence

House Democrats Make an About-Face on Challenging Trump’s Emoluments Violations

Rep. Jamie Raskin smiles while leaving Capitol Hill on Oct. 3 in Washington.
Rep. Jamie Raskin on Oct. 3 in Washington.
Zach Gibson/Getty Images

This week, the House Rules Committee was reportedly scheduled to consider a resolution disapproving Donald Trump’s receipt of “emoluments” in the form of payments by foreign governments to his resorts, hotels, and other businesses. Consideration of the bill was canceled when Trump, on Saturday, rescinded last week’s announcement that next year’s G-7 meeting would be held at his Doral resort in Miami.

The cancellation of the hearing is a great pity. Most “resolutions” by Congress are empty gestures, mere posturing, or venting of legislative frustration. But a resolution by either chamber disapproving Trump’s receipt of foreign emoluments would have genuine constitutional significance and could play an important role in shaping articles of impeachment.

The Constitution has two emoluments clauses, one addressing foreign and the other domestic payments.

The domestic emoluments clause of Article II, Section 1, says:

The President shall […] receive for his Services, a Compensation […] and he shall not receive […]any other Emolument from the United States, or any of them.

The point of the domestic emoluments clause is to ensure that the president doesn’t use the levers of his office to secure money beyond his salary from the federal government and that states cannot curry favor with the chief executive by lining his pockets. Note that the prohibition on domestic emoluments is absolute. The federal and state governments can’t pay them. The president can’t take them. Period.

The foreign emoluments clause of Article I, Section 9, says:

[N]o Person holding any Office of Profit or Trust under [the United States], 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.

The point of the foreign emoluments clause is to prevent foreign powers from seducing the American president with honors or riches. The Framers were deeply concerned about this possibility, more so because they lived in a time when America was poor, Europe was rich, and it was common for European notables and ministers of state to be granted titles, lands, or revenue-producing sinecures by countries other than their own. Kings were then known to be open to such corruption. Charles II of England solicited a huge bribe from the king of France in return for a promise of English neutrality in the ongoing Franco-Dutch War. In 1678, Parliament impeached the Earl of Danby for writing the letter that made the offer.

This history weighed heavily on the Framers. Impeachment has from its beginnings been the constitutional means of addressing a president’s purchase by foreign interests. During the Constitutional Convention, Gouverneur Morris spoke several times of the need to impeach a president in the pay of a foreign power. At the Virginia Ratifying Convention in 1788, Edmund Randolph was still more explicit, saying, “There is another provision against the danger … of the President receiving emoluments from foreign powers. If discovered, he may be impeached.”

The emoluments prohibition is, by design, far more stringent than the impeachment clause’s ban on bribery. The Framers understood that corruption flows not merely from express exchanges of money for performance, but from the insidious distortion of loyalty arising from the bestowal of gifts and favors.

That said, there is what may on first reading seem a peculiar escape hatch in the foreign emoluments clause. Unlike its domestic analog, the foreign emoluments prohibition is not absolute: A president may accept foreign honors or emoluments with “the consent of Congress.” This is because the Framers recognized that diplomatic courtesies sometimes take the form of ceremonial gifts, and so they allowed for the possibility that a president could keep such items so long as Congress gave its permission.

This is where the now-delayed House emoluments resolution enters the case against Trump. Trump, of course, owns or licenses his name to hotels, resorts, and high-rises around the world. He has famously refused to divest these assets, or indeed maintain any meaningful separation between himself and their ongoing management. Instead, he and his family take every opportunity to promote them. To no one’s surprise, Americans and foreigners from both government and the private sector seeking to curry favor with the president and his administration have rushed to patronize his businesses, sometimes baldly advertising that they are doing so. (One of the most wince-inducing tidbits from the Trump-Ukrainian president call was President Volodymyr Zelensky’s pandering mention that he stayed at Trump Tower while visiting New York.)

Trump claims that none of the money he’s taking in from foreign governments can be considered a prohibited “emolument” because the cash is generated as part of a purchase of goods or services from a private business. This argument is extraordinarily weak. In the founding period, the word “emolument” meant not only salary, but far more commonly, “profit,” “gain,” “advantage,” or “benefit.” When a foreign government buys from a president, it confers a profit, gain, advantage, or benefit he would not otherwise receive.

The Framers were not such bumpkins as to imagine foreign payoffs to the American head of state would be OK so long as foreigners take the trouble to funnel them through the president’s business. While at least one federal judge has agreed with this (pretty self-evident) proposition, the question is a novel one. As I’ve argued in my book, impeaching Trump based on emoluments violations alone would be a questionable strategy—at least until some authoritative body makes a clear statement on the point.

One source of such a statement would be the Supreme Court. But as with so many other points on which Trump is challenging governing norms, getting the issue before the high court has taken ages, and the courts might ultimately opt to not decide the issue.

Which leaves Congress. Maryland Rep. Jamie Raskin and others have been arguing privately for months that House of Representatives should pass a resolution declaring two things: First, that in its view, payments to Trump businesses from foreign governments are “emoluments” within the meaning of Article I, Section 9. Second, that the House does not consent to his receipt of such emoluments.

Such a resolution would accomplish multiple objectives. Any court interpreting the emoluments clauses would certainly accord some deference to such a resolution. Moreover, if the Supreme Court was to find that the definition of “emoluments” or the application of the emoluments clauses to the president were non-justiciable political questions, that would cede the interpretive issue back to Congress where the House would already have decided it.

More importantly, if payments to presidential businesses are “emoluments,” the president is barred from receiving them without “the Consent of the Congress.” And that means Trump needs consent of the whole Congress, both chambers—otherwise, getting and keeping the money is unconstitutional. Once either the House or the Senate expressly denies its consent, the unconstitutionality and illegality of the president’s foreign emoluments becomes undeniable.

I understand why, for a long time, House leadership might not have wanted to put this issue front and center in their contest with Trump. It seems kind of esoteric, and there was also the Russia probe. Now there is the Ukraine investigation. I also understand why, once Trump declared his intention to bring the G-7 conference to his own resort, the sheer effrontery of his self-dealing re-awakened interest in the slumbering emoluments resolution. And I understand why, once Trump retreated, leadership might have returned to its default position of focusing on other issues. Doral was an easy high-profile case. The everyday grifting operations of Trumpworld are harder to explain and have, somehow, become largely accepted.

Nonetheless, pulling the resolution back may be an error. At a minimum, the House should be on record expressing its constitutional judgment that foreign payments to American presidents are both wrong and unconstitutional, however they are routed to the president’s wallet. The Constitution grants the power of consent or refusal to Congress. That power should be used. So long as the House remains silent, that silence can be construed—not without some justice—as a form of consent.

Finally, Trump’s history suggests that the Doral rebuke and his tactical retreat will not reform him. He will continue to monetize the presidency and will find occasions to flaunt the fact that he is doing so. Once the House has expressly withdrawn its constitutionally required consent, Trump’s persistence in his current pattern of behavior, as well as any more spectacular future outbreaks, will provide solid grounds for yet another strong article of impeachment.