The Foreign Emoluments Clause: Will Pres. Trump Be in Violation by Virtue of Taking the Oath?

Abstract

The Foreign Emoluments Clause (Article I, Section 9 of the Constitution) provides that those holding federal office shall not accept “any present, emolument, office, or title, of any kind whatever, from any…foreign state.” It has been argued, most prominently and forcefully by Prof. Laurence H. Tribe, that a Pres. Trump, because of his far-flung business interests, would be in violation of the Clause merely by virtue of his taking the oath. This conclusion is incorrect, because it is bottomed on a mistaken understanding of the meaning of the word “emolument”. The income that would continue to flow to a Pres. Trump after he takes his oath of office will not arise from the office of, or his employment as, president, even if that income is from a foreign state. Therefore, that income cannot reasonably be said to be an emolument. Moreover, if one were to accept Prof. Tribe’s mistaken understanding of “emolument,” it would follow that Pres. Obama, since his own oath-taking, has been continually in violation of the Presidential Compensation Clause (Article II, Section 1).

Keywords: Foreign Emoluments Clause, Presidential Compensation Clause, President-elect Trump, Prof. Laurence Tribe, originalism, constitutional textualism