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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.