Some readers may be aware that an organization called Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit claiming that Mr. Trump has violated the foreign emoluments clause of the constitution by accepting, through his various businesses, payments from foreign governments. The Justice Department has sought to have the CREW suit dismissed.
One of DOJ’s arguments is that, at the time the Constitution was written and ratified, the word “emoluments” would have been understood as a term of art meaning “profit arising from office or employ.” The implication of this definition is that the foreign emoluments prohibited by the Constitution would not include payments made to a president or other office holder as part of private business transactions formally separate from the conduct of the recipient’s government office.
DOJ’s endorsement of this narrow definition of emolument rests heavily on two particular dictionaries in circulation during the founding period – A Complete and Universal English Dictionary on a New Plan by James Barclay and The Difference between Words, Esteemed Synonymous, in the English Language by John Trusler.
In a new article, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523-1806, Professor John Mikhail of Georgetown Law School, pretty thoroughly shreds DOJ’s dictionary-based argument. He shows that almost every dictionary extant in the founding era contained far broader definitions of “emolument,” definitions that easily embrace payments to an office-holder’s private businesses. Not only does it appear that DOJ cherry-picked its dictionaries, but Professor Mikhail makes a convincing case that the two dictionaries in question were probably not either possessed or relied upon by the founders. (The best part of the Mikhail article for true legal history nerds is that it includes pdf images of the relevant pages from all the old dictionaries.}
Professor Mikhail’s work by no means proves that the Foreign Emoluments Clause does cover Mr. Trump’s business transactions, but it does cut away one prop of the DOJ argument to the contrary.