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Analysis

Congress Can Give the Emoluments Clause Real Teeth

The Foreign and Domestic Emoluments Enforcement Act can help enforce one of our nation’s oldest anti-corruption provisions.

  • Harry Rube
November 5, 2021
Shot of the White House past a fence
Liu Jie/Xinhua via Getty Images

Yester­day, Sen. Richard Blumenthal (D-CT) and other members of the Senate intro­duced the Foreign and Domestic Emolu­ments Enforce­ment Act, new legis­la­tion that will give real teeth to one of our nation’s oldest anti-corrup­tion provi­sions.

The ideal of public service as a public trust, not a path to self-enrich­ment, is a key value under­ly­ing Amer­ican demo­cracy. The prin­ciple is so funda­mental that it was writ­ten into the Consti­tu­tion in the form of the Emolu­ments Clauses. The Foreign Emolu­ments Clause requires Congress to consent to any federal govern­ment offi­cial receiv­ing any bene­fit, finan­cial or other­wise, from a foreign govern­ment. The Domestic Emolu­ments Clause prohib­its the pres­id­ent from receiv­ing any personal bene­fit from a U.S. state or local govern­ment.

For most of our coun­try’s history, pres­id­ents and other federal offi­cials took these require­ments seri­ously, often seek­ing to avoid even the appear­ance of impro­pri­ety. Pres­id­ents Andrew Jack­son and Abra­ham Lincoln asked for Congress’s permis­sion to accept cere­mo­nial gifts from foreign lead­ers. Pres­id­ent Ronald Reagan sought a legal determ­in­a­tion that his state pension from Cali­for­nia was not a domestic emolu­ment. Every pres­id­ent in the last four decades with poten­tially prob­lem­atic assets and income streams has divested from them or put them into a blind trust. Lower-rank­ing offi­cials have also taken compli­ance seri­ously, seek­ing DOJ guid­ance on issues as varied as whether receiv­ing awards from inter­na­tional asso­ci­ations, payment for serving on inter­na­tional commis­sions, or consult­ing fees from a domestic company that has been contrac­ted by a foreign govern­ment would viol­ate the clause.

But all of this conduct was to some degree volun­tary. The Consti­tu­tion does not set forth a clear mech­an­ism for enfor­cing either emolu­ment clause or specify a remedy in the case of viol­a­tions. It also fails to provide much detail as to exactly what types of bene­fits consti­tute prohib­ited emolu­ments. The fact that the Foreign Emolu­ments Clause prohib­its “any” emolu­ment “of any kind whatever” implies that the term should be construed broadly — a read­ing followed by several lower courts — to reach any bene­fit, gain, or advant­age, includ­ing profits from private market trans­ac­tions. Others disagree, and there has been no clear judi­cial determ­in­a­tion on the matter.

The result­ing uncer­tainty has always left some room for inap­pro­pri­ate conduct. For instance, a broader read­ing of the Foreign Emolu­ments Clause might have preven­ted past scan­dals involving members of Congress from both parties who did busi­ness with and accep­ted travel and gifts from foreign govern­ments. But the prob­lem became acute during Donald Trump’s pres­id­ency. Trump broke from long-stand­ing preced­ent by refus­ing to divest or other­wise mean­ing­fully distance himself from his busi­nesses after taking office, creat­ing numer­ous aven­ues for foreign govern­ments and domestic polit­ical allies to curry favor with his admin­is­tra­tion.

One import­ant locus of this conduct was the pres­id­ent’s Wash­ing­ton, DC, hotel. By one count, the hotel has hosted offi­cials from more than 33 coun­tries, and the hotel made millions off foreign govern­ments, includ­ing nearly $300,000 in book­ings from lobby­ists work­ing for the Saudi govern­ment and an estim­ated $40,000–$60,000 from Kuwaiti offi­cials. (The Trump Organ­iz­a­tion claims to have donated its profits from foreign govern­ments to the U.S. Treas­ury but has never provided a full account­ing of payments received that could be used to verify this claim.) The pres­id­ent’s domestic allies also patron­ized the hotel using public money. The former governor of Maine, for instance, spent tens of thou­sands of dollars stay­ing there on offi­cial busi­ness.

The hotel and other appar­ent emolu­ments viol­a­tions promp­ted three separ­ate lawsuits against the pres­id­ent and his compan­ies — one brought by a group of local busi­nesses in Wash­ing­ton, DC, one brought by members of Congress, and another brought by the attor­neys general of Mary­land, Virginia, and the District of Columbia. But each has dragged on for years, held up by the ques­tion of whether the plaintiffs had legal stand­ing to sue the pres­id­ent. After Pres­id­ent Biden’s elec­tion, the Supreme Court dismissed the cases as moot, allow­ing the courts to sidestep the thorny ques­tion of what consti­tutes a prohib­ited emolu­ment under each clause.

The legis­la­tion intro­duced yester­day would address this issue, among others, creat­ing clear stand­ards for public offi­cials (includ­ing the pres­id­ent) and mech­an­isms to hold them account­able when they fall short. It defines “emolu­ments” broadly to include the proceeds from commer­cial trans­ac­tions, requires federal offi­cials to disclose the emolu­ments they receive, and author­izes civil fines and other remed­ies for viol­a­tions. It also empowers specific actors — includ­ing federal ethics regu­lat­ors and both houses of Congress — to invest­ig­ate poten­tial viol­a­tions and sue to rectify them.

These provi­sions align closely with a key recom­mend­a­tion of the Bren­nan Center’s bipar­tisan National Task Force on Rule of Law & Demo­cracy, composed of former senior Repub­lican and Demo­cratic offi­cials who put forward a slate of reforms to restore guard­rails that have eroded in recent decades. They are also in keep­ing with past congres­sional action. Prior legis­la­tion, such as the Foreign Gifts and Decor­a­tions Act, defined that gifts of minimal value from foreign entit­ies were emolu­ments to which Congress had given its consent. These new provi­sions would build on that history of legis­lat­ive codi­fic­a­tion and defin­i­tion of the Consti­tu­tion’s ethics require­ments.

The Emolu­ments Clauses reflect a concern — dating back to the found­ing of our nation — that public offi­cials, espe­cially the pres­id­ent, must put the interests of the Amer­ican people first. By taking the neces­sary step of codi­fy­ing these key consti­tu­tional provi­sions, the Foreign and Domestic Emolu­ments Enforce­ment Act can help prevent future viol­a­tions, increase account­ab­il­ity, and restore faith in govern­ment.