PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.
In a previous Opinion
Plaintiffs have alleged that the violations consist of the President's actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments (or any of their instrumentalities) in connection with his and the Trump Organization's ownership of the Trump International Hotel in Washington, D.C.
The President has moved to dismiss the Amended Complaint for failure to state a claim. Although the President made this argument in his Motion to Dismiss and the parties addressed the issue in their briefs in support of and in opposition to the President's Motion, the Court deferred deciding the meaning and applicability of the Clauses until the issue of standing was resolved. Having decided that issue in favor of Plaintiffs, the Court turns to the issue of what the Clauses mean and whether Plaintiffs have otherwise stated claims under them.
For the reasons that follow, the Court determines that Plaintiffs have convincingly argued that the term "emolument" in both the Foreign and Domestic Emoluments Clauses, with slight refinements that the Court will address, means any "profit," "gain," or "advantage" and that accordingly they have stated claims to the effect that the President, in certain instances, has violated both the Foreign and Domestic Clauses. The Court
A full account of the facts alleged in this case is set out in the Court's Standing Opinion.
Many facts are undisputed or essentially undisputed. Donald J. Trump is the President of the United States and the sole or a substantial owner of both the Trump Organization LLC and The Trump Organization, Inc. (collectively, the Trump Organization), umbrella organizations under which many, if not all, of the President's various corporations, limited-liability companies, limited partnerships, and other entities are loosely organized. Am. Compl. ¶¶ 20, 29 (Mar. 12, 2018), ECF No. 95. Of particular importance in the present suit is the President's ownership, through the Trump Organization, of the Trump International Hotel in Washington, D.C. (the Hotel).
The Hotel is a five-star, luxury hotel located on Pennsylvania Avenue, N.W., in Washington, near the White House. Id. ¶ 34. While the President does not actively manage the Hotel, through the Trump Organization, he continues to own and purportedly controls the Hotel as well as the bar and restaurant, BLT Prime, and the event spaces located within the establishment. Id. ¶¶ 29, 34-36. Directly or indirectly, the President actually or potentially shares in the revenues that the Hotel and its appurtenant restaurant, bar, and event spaces generate. Id.
On January 11, 2017, shortly before his inauguration, the President announced that he would be turning over the "leadership and management" of the Trump Organization to his sons, Eric Trump and Donald Trump, Jr. Id. ¶ 30. Prior to taking office, he also announced that all profits earned from foreign governments would be donated to the U.S. Treasury. Id. ¶ 46. The Trump Organization stated that it would not be tracking all payments it might receive from foreign governments and only planned to make an estimate with regard to such payments. Id. However, following his inauguration and, as of the date of the filing of this action, June 12, 2017, the President had made no such "donations" to the U.S. Treasury.
Since the President's election, a number of foreign governments or their instrumentalities have patronized or have expressed a definite intention to patronize the Hotel, some of which have indicated that they are doing so precisely because of the President's association with it. Am. Compl. ¶¶ 39-43. The President has at no time sought the consent of Congress for him to accept the revenues the Hotel receives or could potentially receive from these foreign governments, nor has Congress ever approved the receipt of such revenues. Id. ¶ 33.
In addition, at least one State — Maine — patronized the Hotel when its Governor, Paul LePage, and his entourage visited Washington to discuss official business with the Federal Government, including discussions with the President. Pls.' Opp'n. at 8 (Nov. 7, 2017), ECF No. 46.
Plaintiffs further allege that the Hotel has received a benefit, which they say is an "emolument," from the Federal Government by virtue of the General Services Administration (GSA) Lease which governs the Trump Organization's use of the Old Post Office Building, the site of the Hotel. Am. Compl. ¶¶ 80-86. Thus Section 37.19 of the Old Post Office Lease states: "No ... elected official of the Government of the United States ... shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom." Id. ¶ 82. Despite a previous statement from a GSA official that the President would be in violation of the Lease unless he fully divested himself of all financial interest in the Lease, following the President's inauguration, the GSA reversed its position, determining that the President was in fact in compliance with the Lease. Id. ¶¶ 83-84. Since then, the Trump Organization and
Plaintiffs allege that these actions of the President, through the Trump Organization, violate both the Foreign and Domestic Emoluments Clauses.
The issue before the Court at this juncture is whether Plaintiffs' allegations state viable claims for relief with respect to the President's purported violations of the Foreign and Domestic Emoluments Clauses.
The key dispute the parties have is over the meaning of the term "emolument"
Plaintiffs submit that the President's actions clearly offend the Clauses. An "emolument," they say, citing among other things the definition of the term in a considerable number of dictionaries contemporaneous with the Constitutional Convention, as well as the purpose of the Clauses to prevent against possible undue influence upon the federal official, is any "profit," "gain" or "advantage." Am. Compl. ¶¶ 23-28; Pls.' Opp'n at 29-30. Accordingly, say Plaintiffs, the Clauses were framed so as to flatly bar the receipt by anyone holding office under the authority of the United States, including the President, of any profit, gain, or advantage of any nature or kind whatsoever from any foreign, the federal, or state government. Pls.' Opp'n at 29. No exception exists, Plaintiffs continue, even if the foreign, federal, or domestic donor receives a quid pro quo from the officeholder in connection with the officeholder's private undertakings. It is enough that the President directly or indirectly receives money from foreign, the federal, and domestic government officials who patronize his Hotel; the Emoluments Clauses are violated.
The President argues that the Emoluments Clauses do not apply to his actions at all — citing (albeit fewer) other dictionary definitions more or less contemporaneous with the adoption of the Clauses to the effect that an "emolument" refers to a "profit arising from an office or employ." Def.'s Mot. Dismiss at 32 (Sept. 29, 2017), ECF No. 21-1. Based on this definition and what he argues is the purpose and historical context of the Clauses, the President submits that an "emolument" pertains only to a payment made in connection with a particular employment over and above one's salary as, say, President of the United States, so that payments to a federal official for any independent services rendered, such as for the rental of hotel rooms or event spaces privately owned by the officeholder, or payments for meals at his restaurants, privately owned, are payments entirely separate and apart from an "emolument" paid to the President qua President. Id. at 31-32. Accordingly, the Amended Complaint, in the President's view, does not state plausible claims for relief. He urges the Court to dismiss it on these grounds.
Although the President himself does not make the argument, as a preliminary matter one of the Amici Curiae suggests that the President is not covered by the Foreign Emoluments Clause at all because his elective office does not "arise under the authority" of the United States. See Br. for Scholar Seth Barrett Tillman & The Judicial Education Project as Amici Curiae in Support of Def. (Oct. 6, 2017), ECF No. 27-1 (Professor Tillman). The Court deals briefly with this latter argument at the outset.
The Court begins with a review of the standards for judicial interpretation of a clause in the Constitution.
Although there has been much public debate, especially in recent years, over which theory or theories should be applied in interpreting constitutional provisions — ranging from strict constructionism,
Supreme Court precedent confirms that a blend of textualism and purposivism should guide the Court's approach.
The meaning of a Constitutional provision "begin[s] with its text." City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Where
When a constitutional provision is ambiguous, however, the Court has recognized the need "to consider the Clause's purpose and historical practice." Noel Canning, 134 S.Ct. at 2559, 2568 ("[I]n interpreting the Clause, we put significant weight upon historical practice.") (emphasis omitted); id. at 2559 ("[L]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions regulating the relationship between Congress and the President.") (citation and quotation marks omitted); see also Heller, 554 U.S. at 592, 128 S.Ct. 2783 ("This meaning is strongly confirmed by the historical background of the [provision]."). Importantly, moreover, the Supreme Court has treated executive practice and precedent "as an interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era." Noel Canning, 134 S.Ct. at 2560, 2562-63 (evaluating past historical practice and discussing Government ethics opinions to inform the Court's determination "of what the law is").
Because one of the Amici Curiae has suggested that the Foreign Emoluments Clause does not apply to the President at all, the Court briefly addresses this issue before turning to the meaning of the term "emolument" itself.
Amicus Curiae Professor Seth Barrett Tillman of the Maynooth University Department of Law argues that the Foreign Emoluments Clause does not extend to the President because the Presidency does not qualify as an "Office of Profit or Trust under [the United States]." The Framers, he says, distinguished between different federal offices and drafted different rules for these distinct federal positions. Tillman Br. at 2, 4. Specifically, Professor Tillman argues that an office "under the United States," which is the language used in the
Professor Tillman claims that this conclusion is supported by both the text and history of the Constitution. He submits, for example, that in the Colonial Period the phrase "Office under the Crown" was a commonly-used drafting convention that referred only to appointed — not elected — positions, a distinction that he suggests remains operative in the United Kingdom today. Id. at 8-9. The Framers of the Constitution and the First Congress, he continues, adhered to this drafting convention. He points to an anti-bribery statute enacted in 1790 in which Congress declared that a defendant convicted of bribing a federal judge "shall forever be disqualified to hold any office of honor, trust, or profit under the United States." Id. at 13 (citing An Act for the Punishment of Certain Crimes, ch. 9, 1 Stat. 112, 117 (1790)). Professor Tillman argues that this statute could not have been understood to include the Presidency because Congress does not have the power to add new qualifications for federal elected positions. Id. In further support of his theory, he points out that, in 1792, the Senate directed President George Washington's Secretary of the Treasury, Alexander Hamilton, to draft a financial statement listing the "emoluments" of every person holding "any civil office or employment under the United States." Id. at 15 (citing 1 Journal of the Senate of the U.S.A. 441 (1820) (May 7, 1792 entry)). Since Hamilton's response did not include the President, Vice President, Senators, or Representatives, Amicus says this is a further indication that the founding-era generation did not consider the phrase "office under the United States" to extend to elected positions. Id. at 15-16.
Despite Amicus' citations to a select number of historical examples, the Court finds that the text, history, and purpose of the Foreign Emoluments Clause, as well as executive branch precedent interpreting it, overwhelmingly support the conclusion that the President holds an "Office of Profit or Trust under [the United States]" within the meaning of the Foreign Emoluments Clause.
Beginning with the text of the Clause, the only logical conclusion, when read with the rest of the Constitution, is that the President holds an "Office of Profit or Trust under [the United States]." The Constitution repeatedly refers to the President as holding an "office." See, e.g., U.S. Const. art. II § 1, cl. 1 ("[The President] shall hold his Office during the Term of four Years[.]"); id., cl. 5 (eligibility requirements for the "Office of President"); id. cl. 8 (requiring the President take an oath to "faithfully execute the Office of President of the United States."). And if text is to be given its plain meaning, the "Office of the President" is surely one of both profit and trust. See Sprague, 282 U.S. at 731-32, 51 S.Ct. 220 (stating that the Constitution's "words and phrases were used in their normal and ordinary" meaning). The President receives compensation for his services (profit) and is entrusted with the welfare of the American people (trust). See, e.g., Deborah Sills, The Foreign Emoluments Clause: Protecting Our National Security Interests, 26 Brooklyn J. L. & Pol'y 63, 81 ("The term `Office of Profit' refers to an office in which a person in office receives a salary, fee, or compensation. The term `Office of Trust,' refers to offices involving `duties of which are particularly important.'") (citing Application of the Emoluments Clause to a Member of the President's
The text also indicates that the President's "Office of Profit or Trust" is one "under the United States." As the Domestic Emoluments Clause illustrates, the term "United States" is used in the Constitution to distinguish between the federal and state governments. See U.S. Const. art. II, § 1, cl. 7 (forbidding emoluments from the United States or "any of them," referring to the States). As a federal office holder, then, the President holds his office "under the United States."
Indeed, reading the phrase "Office of Profit or Trust under [the United States]" to exclude the President would lead to an essentially absurd result. Consider Article I, Section 3, cl. 7 of the Constitution, which provides that an impeached official shall be disqualified from holding "any Office of honor, Trust or Profit under the United States." U.S. Const. art. I, § 3, cl. 7. As a Memorandum issued by the Brookings Institution highlights, "[i]f the President did not hold an office `under the United States,' a disgraced former official would be forbidden from every federal office in the land, but could be President." Norman Eisen, Richard Painter, & Laurence Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump at 8, Brookings Institution (Dec. 16, 2016), https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clausel.pdf (Brookings Memorandum).
In all, reading the Constitution as a complete document rather than piecemeal establishes that the President holds an "Office of Profit or Trust under [the United States]."
Even if the text were ambiguous, the historical context and purpose of the Foreign Emoluments Clause confirm that the Framers understood the Presidency to be an "Office of Profit or Trust under [the United States]." As one historical scholar has noted, when the totality of founding-era evidence is considered, "an avalanche buries [Tillman's] fanciful claims." Prakash, supra note 17, at 147.
Moreover, in light of the purpose of the Foreign Emoluments Clause, as discussed in greater detail below,
Professor Tillman's argument that the First Congress must have understood the phrase "Office of Profit or Trust under [the United States]" to exclude the President because of the existence of the 1790 anti-bribery statute is especially perplexing. That Congress would have intended a person convicted of bribing a federal judge to be banned from holding every federal office except the office of President is, in the Court's view, altogether unlikely.
Finally, if the foregoing considerations were not in and of themselves dispositive of Professor Tillman's argument, consistent executive branch practice and precedent over the years have definitively put his thesis to rest. As the OLC stated in 2009, "[t]he President surely "hold[s] an[] Office of Profit or Trust[.]" Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1, 4 (2009). This statement was fully consistent with prior OLC opinions that had applied the Foreign Emoluments Clause to the President. See, e.g., Proposal That the President Accept Honorary Irish Citizenship, 1 Supp. Op. O.L.C. 278, 278 (1963) ("I believe that acceptance by the President of honorary Irish citizenship would fall within the spirit, if not the letter, of [the Foreign Emoluments Clause].").
The Court concludes that the President holds an "Office of Profit or Trust
The question remains: What are those restrictions?
Having determined that both Emoluments Clauses apply to the President, the Court must now decide what the term "emolument" within them means.
While both parties begin with the text of the Clauses, they offer significantly different textual interpretations.
Plaintiffs argue that the text indicates a clear intention that a broad definition of "emolument," applies, that it means any "profit," "gain," or "advantage." Not only was this definition more common at the time of the drafting,
These expansive modifiers, Plaintiffs argue, stand in marked contrast to the only other place in the Constitution where the term "emolument" appears, the Incompatibility Clause, which restricts increases in the compensation of members of Congress.
Despite the President's argument to the contrary, Plaintiffs say that interpreting "emolument" to cover essentially anything of value would not create redundancies within the Foreign Emoluments Clause's separate ban on "presents." Rather, they submit, the term "present" in the Foreign Clause was likely intended to ensure that the acceptance of any unsolicited, unreciprocated "gift" given merely as a sign of gratitude would be covered, whereas the prohibition against receipt of an "emolument" would reach payments made with the more obvious intention to influence. Id. at 34-35 n.22. The point is that both types of payments would be covered.
The President, while acknowledging that the broader definition of "emolument" advanced by Plaintiffs also existed during the founding era, asserts that this should be of no importance because the term has to be read in context with the rest of the words of the Emoluments Clauses under the familiar rule of construction known as noscitur a sociis.
The President claims that this narrower definition of "emolument" is more consistent with the nature of the other prohibited categories in the Foreign Clause. "Present," "office," and "title" are all things personally conferred or bestowed upon a U.S. official. Def.'s Mot. Dismiss at 33. The terms "any" and "any kind whatever," he says, are included in the Clauses simply to ensure that every type of identified compensation, e.g., "present," "office," "title", is captured by the Clause. This is not, he claims, a basis to choose whether "emolument" has a separate meaning. Def.'s Reply at 19 (Dec. 1, 2017), ECF No. 70.
The President argues that his position is further bolstered by the text of the Domestic Emoluments Clause where, he says, "compensation" is qualified by "for his services," meaning that "any other Emolument" must also be qualified by "for his services." Def.'s Mot. Dismiss at 33. In effect, the President argues that the Domestic Emoluments Clause should read: "The President shall, at stated Times, receive for his Services, a Compensation, ... and he shall not receive [for his services] within that Period any other Emolument[.]"
Further, referring to the Constitution as a whole, the President maintains that the Incompatibility Clause actually supports his argument that "emolument" refers to compensation for an officeholder's services. Def.'s Reply at 20. In his view, because the Incompatibility Clause treats an "emolument" as an aspect of an office that cannot be increased, it expressly ties an emolument to an official's employment and duties, which suggests the same meaning for the term in the Emoluments Clauses. Id. Acknowledging that the Incompatibility Clause contains a restrictive modifier, the President dismisses this as a result of the fact that it deals with a specific office — i.e., the civil office for which salary has been increased — whereas the Foreign Emoluments Clause does not include any such office-related limitation. Id. In other words, because the Foreign Emoluments Clause does not reference a specific office, it supposedly has a broader reach than the Incompatibility Clause. It regulates not only compensation or benefits for jobs held by former Senators or Congressmen; it extends to benefits payable to any federal official in his capacity as a federal official. Id. The term "emolument" is not meant to have a broader scope.
Finally, says the President, interpreting "emolument" to cover anything of value would create unnecessary redundancies within the Foreign Clause because it would include within its scope the term "present," which necessarily has a separate and undisputed meaning. Interpreting a term to create such a redundancy, he continues, runs counter to Supreme Court precedent, which states that "every word must have its due force, and appropriate meaning" because "it is evident" that "no word was unnecessarily used, or needlessly added." Def.'s Mot. Dismiss at 36 (quoting Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570-71, 10 S.Ct. 579 (1840)).
The Court agrees with the parties that the term "emolument" must be read in harmony with the surrounding text of the Emoluments Clauses. But ultimately it finds Plaintiffs' arguments more persuasive. The text of both Clauses strongly indicates that the broader meaning of "emolument" advanced by Plaintiffs was meant to apply. As Plaintiffs point out, the Foreign Clause bans, without Congressional approval, "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State." U.S. Const. art. I, § 9, cl. 8 (emphasis added). Use of such expansive modifiers
The phrase "any other Emolument" in the Domestic Emoluments Clause suggests the same broad interpretation of the term. The Court does not read the Clause to qualify "emolument" by the words "for his services." The use of "any other" in the Clause once again points firmly in Plaintiffs' direction. The Court, in effect, construes the Clause to read: "The President shall ... receive for his Services, a Compensation,... and he shall not receive [for any reason] within that Period any other Emolument [of any kind]." But ultimately, even allowing that the term "emolument" might be qualified by the words "for his services" in the Domestic Clause, this amounts to no silver bullet for the President. Logic equally suggests that the payments, direct or indirect, that he receives from domestic governments in connection with the Hotel are in fact "emoluments" to his salary as President. Again, it has been alleged that the State of Maine patronized the Hotel when its Governor, Paul LePage, and his staff visited Washington to discuss official business with the Federal Government, including holding discussions with the President as President, Pls.' Opp'n. at 8, and when, on at least one of those trips, Governor LePage and the President appeared together at a news conference at which the President signed an executive order to review actions of the prior administration that established national monuments within the National Park Service, which could apply to a park and national monument in Maine, which President Obama had established over Governor LePage's objections in 2016. Id.
Equally unpersuasive is the President's argument that the meaning of the term "emoluments" in the Incompatibility Clause somehow undermines Plaintiffs' claims. As Plaintiffs point out, unlike the Emoluments Clauses, the Incompatibility Clause contains a restrictive modifier limiting the "Emoluments whereof" mentioned there to an expressly referenced office, viz. the office for which compensation has been increased by Congress. It most assuredly weighs in favor of Plaintiffs' argument that the Framers felt the need to include such a modifier. If "emolument" were always to be read as a synonym for salary or payment for official services rendered, this modifier in the Incompatibility Clause would have been unnecessary.
Nor does interpreting "emolument" to mean "profit," "gain," or "advantage," as the President suggests, render the term "present" in the Foreign Emoluments Clause redundant. As the President himself concedes, a "present" in the founding era was defined then, as it is today, as something "bestowed on another without price or exchange." Def.'s Mot. Dismiss at 37. It has been noted that historically unsolicited gifts, i.e. presents, were commonly given by European heads of state as a matter of custom. See Zephyr Teachout,
On the other hand, the President's cramped interpretation of the term would seem to create its own concerning redundancies within the Constitution. Characterizing an "emolument" as "the receipt of compensation for services rendered by an official in an official capacity," Def.'s Mot. Dismiss at 31, is tantamount to defining the transaction as nothing less than one of federal bribery, a crime which prohibits a federal public official from, directly or indirectly, receiving or accepting "anything of value" in return for "being influenced in the performance of any official act." 18 U.S.C. § 201(b)(2). Given that Article II, Section 4 of the Constitution already addresses the crime of bribery, making it an impeachable offense,
Accordingly, given the text of both Clauses, the Court begins with a strong presumption that the term "emolument" should be interpreted broadly to mean "profit," "gain," or "advantage," essentially covering anything of value.
Because the Constitution was "written to be understood by the voters," Heller, 554 U.S. at 576, 128 S.Ct. 2783, it is important to consider the meaning of the term "emolument" against the backdrop of what ordinary citizens at the time of the Nation's founding would have understood it to mean. Though the parties apparently agree that the term "emolument" had at least two meanings at the time of the Constitutional Convention, they diverge as to its ordinary, common usage by the founding generation.
Plaintiffs contend that the most common definition of emolument at the time was "profit," "gain," or "advantage." Pls. Opp'n at 31 (citing 1 Johnson, A Dictionary of the English Language (6th ed. 1785); Bailey, An Universal Etymological English
On the other hand, Plaintiffs submit that the definition advanced by the President — "profit arising from an office or employ" — was far less common. Citing the Mikhail article, Plaintiffs assert that while the definition they advance can be found in virtually every founding-era dictionary, the President's definition appears in less than 8% of these dictionaries. Id. at 32 (citing Mikhail, The Definition of "Emolument," supra, at 1-2). This, according to Plaintiffs, confirms that the President's narrow definition was not the ordinary meaning of the term "emolument" that voters of the time would have understood.
In response, the President invites the Court's attention to alternate sources that he claims define "emolument" as a "profit arising from an office or employ." Def.'s Mot. Dismiss at 34 (citing Barclay's A Complete and Universal English Dictionary on a New Plan (1774); 1 John Trusler, The Difference, Between Words, Esteemed Synonymous, in the English Language; And, the Proper Choice of Them Determined 154-55 (1766)). The President submits that the use of the term to refer to receipt of value for one's services rendered in an official capacity is consistent with these particular contemporaneous dictionary definitions. Id. at 34-35. In fact, he cites examples from the Oxford English Dictionary as far back as 1480, 1650, and 1743, providing as one of two definitions: "[p]rofit or gain arising from station, office, or employment; dues; reward, remuneration, salary." Id. (citing Oxford English Dictionary, Oxford University Press, Emolument, OED Online (Dec. 2016), http://www.oed.com/view/Entry/61242).
The President also criticizes Plaintiffs' "mechanical counting of dictionaries," noting that the Mikhail article fails to account for frequency of usage. Def.'s Reply at 17. He argues that at the time of the Nation's founding, an "emolument" was a common characteristic of federal office, described by the Supreme Court as "every species of compensation or pecuniary profit derived from a discharge of the duties of office." Def.'s Mot. Dismiss at 31 (quoting Hoyt v. United States, 51 U.S. (10 How.) 109, 135, 13 S.Ct. 348 (1850)). In light of this view of contemporaneous common usage, the
His narrower definition, the President says, is also closely related to the etymology of the word "emolument," which references "profit from labor" or "profit from grinding corn." Id. at 35 (citing Walter W. Skeat, An Etymological Dictionary of the English Language 189 (1888) (emolument: "profit, what is gained by labour"); The Barnhart Dictionary of Etymology 326 (1988) (emolument: "n. profit from an office or position. 1435, in Proceedings of the Privy Council; borrowed through Middle French émolument, and directly from Latin émolumentum profit, gain, (originally) payment to a miller for grinding corn, from émolere grind out (é-out + molere to grind; see MEAL grain)")). Because Plaintiffs, and the Mikhail article upon which they rely, ignore dictionaries that include variations of this etymologically rooted definition, the President claims they significantly understate the percentage of dictionaries supporting his position. Def.'s Reply at 18-19.
The President argues that Plaintiffs "expansive construction is further undermined by a proposed constitutional amendment that would have extended the prohibitions of the Foreign Emoluments Clause to all private citizens." Def.'s Mot. Dismiss at 44. Specifically, the amendment, which was proposed in 1810, would have prohibited any citizen of the United States from accepting, without the consent of Congress, "any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power." Def.'s Mot. Dismiss at 44-45 (citing Proposing an Amendment to the Constitution, S.J. Res. 2, 11th Cong., 2 Stat. 613 (1810)). The consequence of doing so, under the proposed amendment, would have been revocation of one's citizenship. Id. While acknowledging that no debates were held on this proposed amendment, the President contends that it is "implausible" that the amendment would have been understood to revoke the citizenship of anyone who might be engaged in commerce with foreign governments or their instrumentalities. Id. at 45. The original public meaning of "emolument," he concludes, could not therefore be as broad as Plaintiffs propose.
Again, in the Court's view, Plaintiffs carry the day.
The clear weight of the evidence shows that an "emolument" was commonly understood by the founding generation to encompass any "profit," "gain," or "advantage." Though the Court agrees that mere counting of dictionaries may not be dispositive, it nonetheless remains highly remarkable that "every English dictionary definition of `emolument' from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief." Mikhail, The Definition of "Emolument," supra, at 1-2.
In addition to its broad meaning in a far greater number of founding-era dictionaries, the term "emolument" was also used in a broad sense in eighteenth century legal and economic treatises. As Professor Mikhail points out, in his Commentaries on the Laws of England, Blackstone uses the word "emolument" on at least sixteen occasions, the majority of those not tied to the performance of official duties or public office. See Mikhail, "Emolument" in Blackstone's Commentaries, supra, (listing examples). Blackstone, for example, refers to the benefits of third-party beneficiaries as "the emolument of third persons," discusses the "emoluments arising from inheritance," and references "pecuniary emoluments" in the context of bankruptcy. 2 William Blackstone, Commentaries on the Laws of England *30 ("The thing given in lieu of tithes must be beneficial to the parson, and not for the emolument of third persons only") (emphasis added); *76 ("The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy.") (emphasis added); *472 ("[W]hereas the law of bankrupts, taking into consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they surrender up their whole estate to be divided among their creditors[.]") (emphasis added).
Similarly, Adam Smith in his The Wealth of Nations — a treatise which the
Though the President cites to a Supreme Court decision in support of his claim that his narrow definition was more commonly used, his reliance on the Court's language in Hoyt v. United States, in this Court's view, is misplaced. In Hoyt, the Supreme Court was interpreting an 1802 statute referring to "the annual emoluments of any collector" of the customs. Hoyt v. United States, 51 U.S. (10 How.) 109, 135, 13 S.Ct. 348 (1850) (citing 2 Stat. 172, § 3 (1802)). Given that the term was tied to a particular office in that context, Hoyt has no broader teaching for understanding the term "emolument" in the present case.
There is, moreover, a substantial body of evidence suggesting that the founding generation used the word "emolument" in a variety of contexts reaching well beyond payments tied to official duties.
Starting with the debates leading up to and during the Constitutional Convention, there are several instances of delegates discussing "emoluments" in a sense that cannot logically be read to mean simply payment for services rendered in an official capacity. For example, during the debates in the Continental Congress on the Articles of Confederation, George Walton, a delegate from Georgia, stated: "The Indian trade is of no essential service to any Colony.... The emoluments of the trade are not a compensation for the expense of
George Washington himself used the term "emolument" frequently in private commercial contexts consistent with Plaintiffs' interpretation. See, e.g., "Proclamation on Intercourse with British Warships, 29 April 1776," Founders Online, National Archives, last modified November 26, 2017, http://founders.archives.gov/documents/Washington/03-04-02-0132 (referring to "wicked Persons, preferring their own, present private Emolument to their Country's Weal") (emphasis added); "Virginia Nonimportation Resolutions, 22 June 1770," Founders Online, National Archives, last modified November 26, 2017, http://founders.archives.gov/documents/Jefferson/01-01-02-0032 (calling for a boycott of sellers of British and European goods who "have preferred their own private emolument, by importing or selling articles prohibited by this association, to the destruction of the dearest rights of the people of this colony." (emphasis added).
In fact, it seems that when the founding generation intended "emolument" to refer only to an official salary or payments tied to holding public office, they did so expressly. For example, The Federalist Papers, understood to have been penned by Hamilton and Madison, refer to "emoluments of office." The Federalist No. 55 (emphasis added). Washington also used this phrase in his correspondence. See Letter from George Washington to Joseph Jones (Dec. 14, 1782), Library of Congress Digital Collection, https://www.loc.gov/resource/mjm.01_0833_0835/?sp=2 ("if both were to fare equally alike with respect to the emoluments of office") (emphasis added).
Ignoring this large accumulation of historical evidence, the President places considerable emphasis on the failed constitutional amendment proposed in 1810, which sought to revoke the citizenship of any individual who accepted or retained "emoluments" from a foreign government. For a proposal that never became law, and apparently underwent virtually no debate by the Framers, it is doubtful that much, if any weight should be accorded to it. But if nothing else, insofar as the bill enjoyed any support, it was at the very least reflective of the extreme concern of its proponents over the potentially corrupting influence of payments from foreign governments.
In the Court's view, the decisive weight of historical evidence supports the conclusion that the common understanding of the
Plaintiffs argue that even if the meaning of the term "emolument" is deemed ambiguous, the constitutional purpose of the Clauses indicates that it was Plaintiffs' broader definition that was intended. Pls.' Opp'n at 32 (citing Noel Canning, 134 S.Ct. at 2561). As to the Foreign Emoluments Clause, Plaintiffs argue that the purpose of the Clause was to prevent the least possibility of undue influence and corruption being exerted upon the President by foreign governments. Id. at 34. That is, the Framers created a prophylactic rule to prevent the slightest chance of such influence. Id. Plaintiffs assert that the President's narrow interpretation, which they emphasize essentially boils down to the equivalent of a prohibition against bribery, would completely erode this aim. Bribery as a crime is very difficult to establish, they point out, and any requirement that a quid pro quo for official services has to be established would be easy to circumvent while at the same time difficult to prove. Id. at 42-43. It therefore seems highly unlikely that the Framers would have wanted to leave a large loophole that would preclude the Clause from accomplishing any meaningful purpose. Id.
As to the Domestic Emoluments Clause, Plaintiffs argue that it reflects a similar intention to "eliminate any pecuniary inducement the President might have to betray his constitutional duty in solely serving the People of the United States." Id. at 35. Citing The Federalist Papers, Plaintiffs assert that the Framers worried about any state government or its officials being able to tempt the President and cause him "to surrender" his "judgment to their inclinations," while forcing states to compete with each other to "appeal[] to his avarice." Id. (citing The Federalist No. 73 (Alexander Hamilton)).Thus, say Plaintiffs, it makes sense to infer that the Framers intended the term "emolument" to sweep broadly. Id. Moreover, because the Domestic Clause only covers "emoluments" and not "presents" as the Foreign Clause does, Plaintiffs point out that the President's narrow definition of "emoluments," insofar as it would only cover payments for official services (i.e., bribery), would permit large — possibly unlimited — cash payments from the federal and state governments, so long as the payments were made for non-official personal services or so long as they are characterized simply as non-quid pro quo "presents." Id. at 43-44. These concerns, Plaintiffs argue, warrant interpreting "emolument" to encompass essentially "anything of value."
The President disputes that either the Foreign or Domestic Clause was intended to have the broad reach Plaintiffs advocate. Rather than being "comprehensive conflict-of-interest provisions covering every conceivable type of activity," he argues that the Clauses were only intended to prohibit receipt of specifically identified categories of compensation. Def.'s Reply at 21. For example, he says, the Foreign Emoluments Clause was adopted against the backdrop of a prevailing custom among European sovereigns to bestow valuable presents upon the conclusion of treaties. In his view, this concern was reflected in Edmond Randolph's speech at the Virginia Ratification Convention where he discussed an incident in which King Louis XVI of France bestowed gifts on American diplomats. Def.'s Mot. Dismiss at 38-39 (citing 3 Elliot, supra, at 465-66; Thomas Jefferson, Notes of Presents Given to American Diplomats by Foreign Governments, ca. 1791). The President submits
Similarly, according to the President, the Domestic Emoluments Clause was adopted to ensure that the President's compensation would remain unaltered during his tenure, not to prevent him from acting on the same terms as every other citizen in transacting private business. Id. at 40.
The President claims that these narrower intentions are supported by the fact that it was common at the time of the founding for federal officials to maintain their own private businesses. Def.'s Reply at 21. He argues that, had the Farmers intended to encompass benefits from private commercial transactions, they surely would have raised this issue. Yet, the President notes, the debates reflect no concern over constraints on private business. Id.; Def.'s Mot. Dismiss at 40-41.
The President also argues that Plaintiffs' interpretation would create absurd consequences today. Def.'s Mot. Dismiss at 51-52. For example, he claims that if the Court were to adopt Plaintiffs' interpretation, it would mean that a federal official's stock holdings in a global company would violate the Foreign Emoluments Clause if some of that company's earnings could be traced to foreign governments. Id. at 52. In light of extremes such as this, the President urges the Court to reject Plaintiffs' broad interpretation.
Notwithstanding the parade of horribles the President calls up, the Court does not see how the historical record reflects anything other than an intention that the Emoluments Clauses function as broad anti-corruption provisions.
The Foreign Emoluments Clause was unquestionably adopted against a background of profound concern on the part of the Framers over possible foreign influence upon the President (and, to be sure, upon other federal officials). It is true that European heads of state before 1787 frequently conferred gifts on foreign statesmen, undoubtedly in many instances for the express purpose of currying favor with them. See Teachout, Corruption in America, supra, at 1-5. For example, Charles Coteworth Pinckney, a delegate to the Constitutional Convention from South Carolina who is credited with providing the final language for the Foreign Emoluments Clause, when speaking later at the South Carolina Ratification Convention, referred to the bribe of "Charles II., who sold Dunkirk to Louis XIV." See 4 Elliot, supra, at 264 (Pinckney discussing the susceptibility of the President to bribes). By the time of the Constitutional Convention, the delegates were "deeply concerned that foreign interests would try to use their wealth to tempt public servants and sway the foreign policy decisions of the new government." Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 361 (2009); see also Sills, supra, at 72 (noting that Madison recorded that "15 delegates used the term `corruption'; no less than 54 times" during the Constitutional Convention) (citing James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. Pol'y 174, 174-76, 181-82 (1994)).
Interestingly, during the Convention, the Framers did not include a Foreign Emoluments Clause in the first drafts of the Constitution. But the omission was soon perceived as being inconsistent with the Articles of Confederation, which had provided that: "[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State." Articles of Confederation of 1781, art.VI. This provision in the Articles, without a doubt, was drastic. Apparently in the view of some at the time,
These concerns were carried forward to the ratification debates in the States. For example, during the Virginia Ratification Convention, in conjunction with a debate over Presidential elections, Edmond Randolph explained the purpose of the Foreign Emoluments Clause as a restriction "provided to prevent corruption." See 3 Elliot, supra, 465. At the same Convention, George Mason responded, expressing concern that it would be "difficult to know whether [the executive] receives emoluments from foreign powers or not" and that "the great powers of Europe" would "be interested in having a friend in the President of the United States." Id. at 484.
These anti-corruption concerns spilled over as well into discussion of the Domestic Emoluments Clause. Alexander Hamilton, in The Federalist No. 73, wrote that power over the President's salary would allow the legislature to "tempt him by largesses, to surrender at [his] discretion his judgment to their inclinations." Hamilton went on to say that "power over a man's support is a power over his will." Id. To combat this potential influence over the President, Hamilton emphasized that the Domestic Emoluments Clause should be applied broadly to protect the President's independence:
Id. Hamilton's statements most assuredly reflect a broader concern than merely "ensuring that a President's compensation remained unaltered during tenure." Def.'s Mot. Dismiss at 39.
Given these fundamental preoccupations, the President's interpretation of the limited meaning of the Emoluments Clauses cannot be the correct one. Yet again, his narrow interpretation of the word "emolument" would reduce the Clauses to little more than a prohibition of bribery which, in addition to already being addressed elsewhere in the Constitution,
Contrary to the President's assertion that the history surrounding the Clauses' adoption is "devoid of concern about private commercial business arrangements," several State constitutions adopted prior to the Convention were specifically designed to prevent public officials from placing
Finally, the Court does not accept the President's argument that construing the term "emolument" broadly would result in the absurd consequences of which he warns. The historical record demonstrates that the Framers were fundamentally concerned with transactions that could potentially influence the President's decisions in his dealings with specific foreign or domestic governments, not with de minimis situations.
In further support of their position, Plaintiffs emphasize that the Office of Legal Counsel (OLC) and the Comptroller General of the United States
Notwithstanding his inability to cite opinions squarely in his favor, the President insists that his position is not inconsistent with the Government opinions Plaintiffs cite. Indeed, he says, the facts underlying many of the opinions on which Plaintiffs rely in fact involved proposed employment relationships between a federal official and a foreign government. Def.'s Reply at 22. For example, he says, two of the OLC opinions cited by Plaintiffs concerned the prospective rendering of personal services by the federal official to the foreign government. Id. (citing Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 156-57 (1982) (a Nuclear Regulatory Commission employee could not "on his leave time" work for an American consulting firm on a project for the Mexican government where the firm secured the contract based solely
The President also cites a 1981 OLC opinion and a 1983 Comptroller General decision, both relating to President Ronald Reagan's retirement benefits from the State of California, which he contends, implicitly at least, run counter to Plaintiffs' position. Def.'s Reply at 24; Def.'s Mot. Dismiss at 47-48 (citing President Reagan's Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, (1981); Comp. Gen. B-207467, 1983 WL 27823 (1983)). In those decisions, both Government entities determined that while in office, President Reagan could continue to receive retirement benefits from the State of California, where he had served as Governor, without violating the Domestic Emoluments Clause. Def.'s Mot. Dismiss at 47. According to President Trump, these decisions cannot be squared with Plaintiffs' definition of "emolument," since retirement benefits surely fall within "anything of value." Def.'s Reply at 24.
Historical practice, the President says, supports his position. He points to a business transaction President Washington had with the Federal Government wherein, as a private citizen, he purchased several lots of public land at a public sale. Though Washington himself had authorized the sale and the sale was conducted by the Commissioners of the District of Columbia, President Trump notes that no one at the time voiced Domestic Emoluments Clause concerns. This, he claims, indicates that private commercial transactions were not thought as being within the scope of the Clause. Def.'s Mot. Dismiss at 43 (citing Certificate for Lots Purchased in the District of Columbia (Sept. 18, 1793), http://founders.archives.gov/documents/Washington/05-14-02-0074). This is especially important, he submits, because President Washington's conduct has been accorded great weight in constitutional interpretation. Def.'s Reply at 26.
Moreover, the President notes, President Washington's conduct was hardly unique. The President highlights the fact that many early Presidents engaged in private commerce, suggesting that it is reasonable to infer that at least some of their transactions must have been with foreign or state government entities. Id.
The Court finds executive branch precedent and practice overwhelmingly consistent with Plaintiffs' expansive view of the meaning of the term "emolument." The President has not cited a single Government opinion that conclusively supports his position. He simply submits that his proposed definition is "not inconsistent" with existing precedent. That sort of argument clearly does not make the grade. OLC pronouncements repeatedly cite the broad purpose of the Clauses and the expansive reach of the term "emolument." See, e.g., Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89, 90 (1987) ("Consistent with its expansive language and underlying purpose, the [Foreign Emoluments Clause] has been interpreted as being `particularly directed against every kind of influence by foreign governments upon officers of the United States,
Further, in line with the purposive analysis when deciding whether a particular arrangement is constitutional, Government officials have carefully considered the extent to which the arrangement at issue contains the potential for improper influence.
Id. This language directly contradicts the President's suggestion that there can be no violation of the Foreign Clause if the federal official is receiving benefits in a private capacity.
The President falls back on the Government opinions concerning President Reagan's California retirement funds, but the Court finds those decisions easily distinguishable. As Plaintiffs suggest, both the OLC and the Comptroller General reached the conclusion that there were no was no Domestic Emoluments Clause violation after determining that the retirement benefits from his time as Governor Reagan of California had become "vested rights" before he took office as President Reagan of the United States. See President Reagan's Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 187-88 (1981) (stating the benefits were "vested rights" rather than "gratuities which the State is free to withdraw."); Comp. Gen. B-207467, 1983 WL 27823, at *3 (1983) (reaching the same conclusion because the benefits were "previously earned," "fully vested," and "set by statute"). Both decisions place great emphasis on whether the benefits at issue would be the type that could potentially influence the President. Given the vested nature of the retirement benefits prior to Governor Reagan's ascendancy to the Presidency, both the OLC and Comptroller General determined that they were not likely to have any effect. See 5 Op. O.L.C. at 192 (concluding that state pension "benefits are not emoluments in the constitutional sense," and their "receipt does not violate the spirit of the Constitution because they do not subject the President to any improper influence."); Comp. Gen. B-207467, 1983 WL 27823, at *3 (finding it "highly unlikely that the President could be swayed in his dealings with the State of California by the prospect of having his pension diminished or rescinded by the State."). On the other hand, profits received from foreign or domestic governments that patronize the Trump International Hotel for the express purpose of potentially currying favor with a sitting President present a stark contrast to the fully vested retirement benefits that then-Governor Reagan earned from the State of California which the State of California was not free to withdraw.
President Trump's appeal to historical practice does not aid his argument. As noted previously, he has provided no evidence — none — that any trading partners of the early Presidents actually were either foreign or domestic governments. Though he relies heavily on a purported potential Domestic Emoluments Clause violation by President Washington — the surrounding facts of which are seriously incomplete (e.g., What sort of public auction was held? How was it advertised? How many bidders were involved?) — as Plaintiffs note, Washington
Executive branch precedent and practice have clearly and consistently held, apart from de minimis instances,
For the foregoing reasons, the Court finds the President is subject to both Emoluments Clauses of the Constitution and that the term "emolument" in both Clauses extends to any profit, gain, or advantage, of more than de minimis value, received by him, directly or indirectly, from foreign, the federal, or domestic governments. This includes profits from private transactions, even those involving services given at fair market value.
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) will be granted if the allegations in a complaint do not "contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."
Based on the foregoing, the Court finds that the Amended Complaint states plausible claims against the President under both the Foreign and Domestic Emoluments Clauses.
With respect to the Foreign Emoluments Clause, Plaintiffs have alleged that foreign governments or their instrumentalities have patronized the Trump International Hotel, spending government funds to stay at the Hotel, eat at its restaurant, and sponsor events in the Hotel's event spaces. Am. Compl. ¶¶ 39-43. They have done so in some cases with the express intention to cater to the good graces of the President. For example, the Amended Complaint alleges that the Kingdom of Saudi Arabia spent thousands of dollars at the Hotel between October 1, 2016, and March 31, 2017, and that the Embassy of Kuwait, moving from another private hotel in the District, held its National Day celebration at the Hotel on February 22, 2017. Id. ¶¶ 40-41. Plaintiffs allege that the President has received or potentially could receive the profits derived from these foreign governments through his ownership of the Hotel through the Trump Organization. Id. ¶¶ 29, 34-36. Finally, Plaintiffs allege (and the
The Court finds that these allegations plausibly state a claim under the Foreign Emoluments Clause.
Plaintiffs make several claims with respect to the Domestic Emoluments Clause.
Plaintiffs allege that the Hotel received an emolument from the Federal Government in the form of the GSA Lease, which governs the Hotel's use of the Old Post Office Building in the District of Columbia, where the Hotel is situated. Section 37.19 of the Old Post Office Lease states: "No... elected official of the Government of the United States ... shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom." Am. Compl. ¶ 82. Plaintiffs allege that, before the President's inauguration, the then-Deputy Commissioner of the GSA indicated that the President would be in violation of the Lease unless he fully divested himself of all financial interests in it. Id. ¶ 83. Shortly after his inauguration, the President replaced the Acting Administrator of the GSA. Id. Plaintiffs allege that several weeks later, on March 16, 2017, less than two months into his term, the President released a proposed budget for 2018 that increased the GSA's funding, while cutting back on other the funding of other agencies. Id. ¶ 84. On March 23, 2017, the GSA issued a letter determining that the President and the Hotel were not in violation of the Lease. Id. Plaintiffs allege that the GSA's abrupt about-face position was and is in direct contradiction of the plain terms of the Lease and that, by determining that the Hotel was and is in compliance with the Lease, the Federal Government bestowed upon the President an emolument in violation of the Domestic Emoluments Clause. Id. ¶ 86.
These allegations plausibly state a claim under the Domestic Emoluments Clause.
In addition to foreign governments patronizing the Hotel, Plaintiffs claim that at least one State — Maine — has patronized the Hotel, spending state funds for its Governor and his entourage to stay at the Hotel and to frequent its facilities during an official visit of those officials to Washington, including an encounter with the President where Presidential action of interest to the Governor took place. Pls.' Opp'n. at 8. Plaintiffs allege on information and belief other States may have done likewise. See Am. Compl. ¶ 98.
These allegations plausibly state a claim under the Domestic Emoluments Clause.
Plaintiffs further claim that, in connection with the Hotel, the President has received substantial tax concessions from the District of Columbia. Pls.' Opp'n at 12 (noting that "just one week after the election, the President's company re-filed a previously dismissed lawsuit against the District, seeking a reduction in its tax bill for the Hotel."). At the time of the briefing in this case, the Trump Organization had only applied for District of Columbia tax concessions. Since then, the District's tax authorities, according to a report in the Washington Post, after dismissal of a previously filed lawsuit, in fact granted the Hotel a reduction in the Organization's 2018 tax bill, for a savings of $991,367.00.
As with their Foreign Emoluments Clause claim, Plaintiffs allege that the President has received all the foregoing benefits on account of his ownership of the Hotel. Am. Compl. ¶¶ 29, 34-36.
The Court finds that these allegations, depending on the evidence adduced, would fairly establish Plaintiffs' claims challenging the President's receipt of emoluments from the federal and state governments under the Domestic Emoluments Clause.
In sum, Plaintiffs have plausibly alleged that the President has been receiving or is potentially able to receive "emoluments" from foreign, the federal, and state governments in violation of the Constitution: They have stated viable claims for relief under both the Foreign and Domestic Emoluments Clauses.
Accordingly, the President's Motion to Dismiss is
The Court
The Court will address the President's Motion to Dismiss the individual capacity claims against him in a subsequent Opinion.
A separate Order will
Those provisions require federal officials to file reports of such offerings with their respective agencies, which then review the filings for compliance with the Act. Id. § 7342(f).
The statute holds interesting implications for the present case. It applies to a "gift" from a foreign government — essentially synonymous with the term "present" in the Foreign Emoluments Clause — but does not cover "emoluments." This seems to suggest that, in enacting the statute, Congress understood that "emolument" had a meaning separate and distinct from "present" (i.e., gift) in the Foreign Clause.
Further, the statute establishes a procedure for obtaining the approval Congress is required to give under the Foreign Clause, delegating to various agencies the actual authority to approve a foreign "gift" (i.e., "present"). Any other "profit," "gain," or "advantage" received from a foreign government — as Plaintiffs have appropriately defined "emolument" — would be left to Congressional approval on a case-by-case basis.
