The Foreign Emoluments Clause

The Foreign Emoluments Clause

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In 1963, the Irish Prime Minister offered President John F. Kennedy honorary Irish citizenship just ahead of his official visit. The symbolic gesture wouldn't have involved anything of monetary value. Still, the U.S. Attorney General was concerned that acceptance of the honor "would fall within the spirit, if not the letter" of a federal law prohibiting influence peddling by foreign officials. He was referring to the Foreign Emoluments Clause of the U.S. Constitution.

Similar concerns about presidents or other federal officials accepting gifts from foreign officials or dignitaries have been voiced throughout history, but the law has never been adequately tested in the court system. That's why the scope and proper application of the Emoluments Clause remains so elusive. Below, we'll discuss its meaning and interpretations; origins; application; and exceptions.

Emoluments Clause and the U.S. Constitution: Background

Near the close of the Philadelphia Convention in 1787, U.S. Senator Charles Pinckey moved to include language with the intent of shielding U.S. officials from external influence. Around the same time, Treasury Secretary Alexander Hamilton wrote in Federalist No. 22 that "one of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."

Sen. Pinckey's motion would become enshrined in Article I, Section 9 of the Constitution (based on a clause in the Articles of Confederation it replaced):

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.

This section of the Constitution also is referred to as the Title of Nobility Clause or Foreign Gifts Clause. While the meanings of present, office, and title are clear, the emoluments definition is a little hazy. Most dictionaries define it as "the returns arising from office or employment usually in the form of compensation or perquisites." There's nothing wrong with an emolument in and of itself (after all, federal officials are paid a salary), but emoluments from foreign officials cross the line.

The Domestic Emoluments Clause

A lesser-known provision of the U.S. Constitution referred to as the Domestic Emoluments Clause can be found in Article II, Section 1. It states that the President of the United States shall receive compensation but that it shouldn't be "increased nor diminished" during their time in office. It also states that no additional compensation from domestic sources shall be paid. This clause is meant to protect the President from attempts at domestic influence peddling.

Foreign Emoluments Clause: Application and Interpretations

The Foreign Emoluments Clause applies to all elected and appointed U.S. government officials, including U.S. diplomats and other federal officials stationed overseas. This doesn't include advisors or others who don't hold official office in the federal government. It also doesn't apply to any government official who has the consent of Congress (via a vote).

Since the offer of honorary Irish citizenship to President Kennedy would have been a "present" or "title" from a "foreign State," it may have been considered a violation of the Foreign Emoluments Clause. However, President Barack Obama's attorneys concluded that his acceptance of the 2009 Nobel Peace Prize didn't violate the law because the award is given by a nongovernmental committee and not a "King, Prince, or foreign state."

Congress has provided some clarity through the Foreign Gifts and Decorations Act. According to the law, federal officials may not accept gifts valued at more than the current "minimal value" (which is reviewed every three years) unless the refusal would cause hardship. For example, refusing a gift of higher value during a diplomatic mission could jeopardize the relationship. Additionally, an honorary degree from a foreign official isn't considered a "present, Emolument, Office, or Title" with respect to the Foreign Emoluments Clause.

Conflicts of Interest vs. Foreign Emoluments

U.S. presidents aren't beholden to federal laws prohibiting conflicts of interest, unlike members of the other branches of government. Presidents often choose to divest of their financial interests (or put them into blind trusts) in order to appear fair and transparent, but they're not required to do so. However, when such interests involve foreign officials, it may be considered a violation of the Foreign Emoluments Clause.

For example, more than 200 members of Congress filed a lawsuit against President Donald Trump in August 2017 alleging violations of the Foreign Emoluments Clause. The suit claims that several foreign government entities, including a lobbying firm working for Saudi Arabia and a bank owned by the Chinese government, paid for rooms in the Trump International Hotel, which is owned and operated by the Trump Organization. As members of Congress, the plaintiffs claim, they "...must have the opportunity to cast a binding vote that gives or withholds their Consent before the President accepts any such Emolument."

Important questions like these will likely be before the federal courts in the years to come as the executive and legislative branches seek greater judicial clarification of the Foreign Emoluments Clause.

Questions About the Foreign Emoluments Clause or Other Federal Laws? Talk to an Attorney

Unless you're a federal official, chances are you won't be facing any legal actions alleging violations of the Foreign Emoluments Clause. But if you have questions or need legal assistance in any other matters of litigation, it's always in your best interests to consult with a skilled professional. Get started today and contact an experienced litigation and appeals attorney near you.

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