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Should impeachment of Mr. Trump ever become a serious prospect, the Foreign Emoluments Clause of the constitution may be part of the conversation.  Article I, Section 9, Clause 8, in which the clause resides, reads as follows:

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, 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 question in Mr. Trump’s case, of course, is whether payments by foreign governments to any of Mr. Trump’s businesses constitute prohibited emoluments.  Some observers take the position that payments, however large and lucrative, that are part of commercial transactions are not “emoluments.”  Others, emphasizing the anti-corruption purpose of the clause and recognizing the likelihood that foreign governments will try to curry favor with Mr. Trump by enriching him, disagree.

Another strand of the argument relates to the even more fundamental question of whether a president is covered by the Clause at all.  The most vocal exponent of the view that presidents aren’t covered has been a fellow named Seth Barrett Tillman, a lecturer in law from, of all places, the National University of Ireland in Maynooth.  He and co-author Josh Blackman had an op-ed in the New York Times yesterday espousing this view.

I haven’t yet studied the emoluments question, so I do not want to be unduly dismissive of Professor Tillman’s position.  Still, at first blush, his argument seems thin for at least two reasons.

First, his position rests heavily on the fact that several early presidents accepted and kept single ceremonial gifts like the key to the Bastille the Marquis de Lafayette gave George Washington, or the bust of Czar Alexander I sent to Thomas Jefferson by the Russian government.  Tillman discounts the fact that later presidents either treated such gifts as property of the nation or, if they wanted to keep them personally, asked congressional permission.  Tillman’s argument that events in the founding era have more interpretive value than later practice is a common trope in constitutional debate.  But it is never a dispositive argument, and, to me, carries even less weight than usual when it relates to events as obscure as the receipt of single ceremonial diplomatic presents.

After all, the point of the clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

Second, when interpreting constitutional language, considerable weight ought to be given to its apparent purpose. Again, the foreign emoluments clause was enacted because the Framers were realists who recognized that men are not angels and that the judgment even of persons of moderate virtue can be distorted by sufficiently generous rewards.  While those Framers would not, I submit, have had the least concern on this score about one-off ceremonial gifts of a key or a bust, they would quite certainly have thought that payments of hundreds of thousands or even millions of readily spendable dollars could have the corrupting effect they feared.

These considerations hardly settle the question.  Professor Tillman also makes the textual argument that the phrase “person holding an office of profit or trust under [the United States” doesn’t include any elected official.  And there remains the, to me, more substantial question of whether payments, however large, to a president’s businesses can be prohibited emoluments.  I’ll return to those another time.

Until then, if you are interested in reading more, I commend you to this page of the Constitution Center website, which explains the issue in some detail and features the differing perspectives of Professor Tillman and Professor Zephyr Teachout.