Amidst the turmoil that began 2021 — insurrection, impeachment, inauguration, and acquittal — some consequential Supreme Court news fell under the radar. In January, the justices dismissed two cases about then-President Trump’s alleged violations of the Emoluments Clauses, which are the Constitution’s guardrails against presidential corruption. In doing so, the Court forfeited a golden opportunity to clarify just what these mandates mean for future presidents. And its refusal to rule one way or another may inadvertently encourage another president to brazenly leverage his or her power for profit.
So what are the Emoluments Clauses, and what do they dictate? There are actually two of these provisions in the Constitution: one foreign and one domestic. The latter sets the president’s salary, and it bars both the federal government and the states from giving the president a raise or any bonuses. The Foreign Emoluments Clause applies to federal officials, including the president, prohibiting them from accepting money or gifts from foreign governments unless they receive permission from Congress. (Of course, Congress never gave Trump permission to keep foreign emoluments because he never bothered to ask.)
As I wrote about here, the founders could not have thought that a president getting a gold trinket from a foreign prince was a problem, but giving a president far more in value in cash through a business would be fine.
Trump violated both Emoluments Clauses from day one, in part because he never truly relinquished his businesses, and in fact could “withdraw profits” from his not-so-blind trust whenever he pleased. This presented ongoing conflicts of interest. For example, the governor of Maine stayed at the Trump International Hotel in DC on the Maine taxpayers’ dime. This would certainly seem to violate the Domestic Emoluments Clause. And then there were the Saudi lobbyists, bankrolled by their government, who also paid for rooms at the Trump International Hotel, spending almost $300,000 in three months — an ostensible breach of the Foreign Emoluments Clause. Evidently, Trump’s businesses continually raked in money from constitutionally prohibited sources.
Following these incidents and more, three separate groups filed suit against Trump during his first year in office for violating the Emoluments Clauses. One group consisted of an ethics watchdog group and individuals who worked in the hospitality industry (CREW v. Trump), another involved hundreds of members of Congress (Blumenthal v. Trump), and the third was filed by Maryland and the District of Columbia.
Notably, all three of these cases presented unprecedented legal issues: in the more than 200 years since our nation was founded, no court had ever litigated either Emoluments Clause. So how did the Supreme Court deal with these novel cases? For all intents and purposes, it didn’t.
In the suit brought by Congress, the justices simply declined to review the case in October, thus upholding the ruling by the DC Circuit Court of Appeals that members of Congress lacked the legal standing to sue under the Foreign Emoluments Clause. And on January 25, the Supreme Court dismissed the other two cases as moot since Trump was no longer in office.
At the very least, the optics of this are embarrassing: the justices sat on these cases for months and waited for Trump to get voted out of office instead of grappling with the weighty legal questions. This has echoes of Bush v. Gore where the Supreme Court’s running out the clock benefited one party.
Had the Supreme Court affirmed the lower court cases in the CREW v. Trump and DC v. Trump, then discovery against the Trump Organization would have begun. Now the Emoluments cases have been unceremoniously ended without resolution.
But there is a bigger problem here. Donald Trump is unlikely to be the last businessperson to win the presidency. If we have a President Bezos or a President Theil, then their foreign business entanglements are likely to be larger than the hotelier president’s. But any future president can use the Trump experience as a guide to avoid the constitutional prohibition on foreign emoluments. So long as foreign governments’ political spending is laundered through a future president’s business, he or she can make the argument that this is perfectly fine since Trump did it.
This precedent is also particularly obnoxious for any president who anticipates serving only one term. They can accept domestic emoluments from states that want to curry favor, safe in the knowledge that the federal courts are unlikely to move quickly enough to stop their unconstitutional behavior. All they have to do is run out the clock. Litigation in Trump’s cases took exactly four years, and at the end of the day he got to keep all the likely monetary gains — even if they were plainly unconstitutional.
These cases moved slowly in part because judges could not agree on what “an emolument” even was, nor could they reconcile who had standing to sue. Then, when the issues finally made it before the highest court, the justices relinquished the opportunity to set an explicit precedent on presidential profiteering.
Fortunately, Congress has the power to clear up any confusion and dictate precise standards on emoluments. For starters, it could pass legislation that guarantees a right to sue to enforce both Emoluments Clauses. Congress should also clearly define what counts as an emolument, ensuring that it includes money funneled through business entities. Such new legislation would help to curb future abuses from future presidents.
The views expressed are the author’s own and not necessarily those of the Brennan Center.