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The emoluments clause, explained

A guide for William Barr, who claims not to know what it is.

Senate Holds Confirmation Hearing For Attorney General Nominee William Barr
William Barr on January 15, 2019.
Chip Somodevilla/Getty Images

Asked by Sen. Dianne Feinstein (D-CA) about ongoing litigation arguing that President Trump’s various business interests represent a violation of the Constitution’s emoluments clause, attorney general nominee William Barr professed to have no idea what she’s talking about.

“I think there is a dispute as to what the emoluments clause relates to,” Barr told the Senate while maintaining that he’s never researched the subject. “I couldn’t even tell you what it says.”

The clause is in fact quite obscure. Until Trump’s ascension to the presidency, it had never been litigated, so there was absolutely no case law to illuminate what it says. That, in turn, is largely because before Trump, no one had attempted to serve as president while also running a large and opaque network of operating businesses.

But the emoluments clause — and litigation around it — has become a key flashpoint in the larger debate over Trump’s financial conflicts of interest and lack of disclosure about his finances.

What the emoluments clause says

Article I, Section 9, Clause 8 of the US Constitution says:

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 Congress, accept of any present, Emolument, Office, or Title, of Amy kind whatever from any King, Prince, or foreign State.

This is a very outdated prose style, but the gist of it is that the authors of the Constitution were concerned that officials of the US government might be subverted by foreign powers who could offer them gifts, offices, titles, or “emoluments” — an old-timey word for compensation for labor or services.

This came up in a concrete way when three Republicans in Congress told President Barack Obama in 2009 that he’d need Congress’s permission to accept the Nobel Peace Prize, which they viewed as an emolument. (The White House considered the question and decided it did not qualify.) No litigation followed from the Obama-era case, in part because nobody had a good-faith belief that Obama’s policymaking was being distorted by bribes from the government of Norway, so there continued to be no case law on what this meant up until Trump’s inauguration.

Trump, however, owns hotels and restaurants that provide a venue for possible ongoing secret payments to him by foreign governments — a situation that early in the Trump presidency a number of scholars told Vox was not allowed.

“It’s clearly prohibited,” said Steven Schooner, a George Washington University law professor.

“The president cannot get a gift from a foreign government,” Jordan Libowitz, of the watchdog group Citizens for Responsibility and Ethics in Washington, told Jeff Stein and Libby Nelson. “And it looks like he’s going to do exactly that.”

Since then, litigation has proceeded on two key questions — first, who (if anyone) has standing to sue over this, and second, what (if anything) would constitute a prohibited financial arrangement on the merits.

The lawsuit is stalled by the shutdown

The main emoluments case is being advanced by the governments of DC and Maryland, which initially had to establish that they have “standing” to sue the president. To do this, they had to establish a plausible claim of having been harmed by the alleged emoluments, which they argue has happened because foreign governments’ interest in courting Trump had caused them to divert business toward Trump’s DC hotel.

For example, as the Washington Post noted, the Trump hotel might be receiving business that otherwise would have gone to the Washington Convention Center or a hotel in Maryland, both of which are subsidized by their state governments.

DC and Maryland managed to win on this critical standing issue, which is important because, having established their standing to sue Trump, they are now in a position to demand access to some of his financial records. To demonstrate the existence of emoluments, they would like to find evidence that Trump’s hotel has been able to charge extraordinary rates above and beyond the ordinary market price of the hotel. To do that, they need more information on how Trump’s businesses work, something we currently know very little about.

Right now we know from a random leak that the manager of a Trump hotel in New York attributed a business turnaround to the Saudi government’s largesse — which, if true, would tell us something damning and important about US-Saudi relations in the Trump era. But to ascertain how true it is, we would need more systematic information.

The administration, meanwhile, argues that this is all basically a bad-faith fishing expedition. Democrats want a pretext to rummage through Trump’s financial records, so they’ve ginned up this weird clause from the Constitution as their excuse.

There was about to be a court battle over various efforts to force Trump to produce evidence in this case, but it’s currently on hold because government lawyers convinced courts that the shutdown makes it impossible for them to litigate the case properly.

Barr’s professed ignorance of the subject aside, however, it seems likely that as long as Trump is president, the Justice Department is going to take his side in emoluments litigation.

Trump’s personal corruption, however, has been a touchy subject for congressional Republicans, who have unanimously acted to prevent any financial disclosure on his part while generally declining to mount any kind of affirmative defense of Trump’s conduct. Under the circumstances, the safest path for Barr was probably to say nothing — which is what he did.

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