False News: Trump and the Emoluments Clause

Numerous false news accounts are circulating about president-elect Trump and the Emoluments Clause.

The story line is that Trump must divest himself of numerous businesses to avoid violating the “Emoluments Clause” of the U.S. Constitution. But when you read the Emoluments Clause:

Clause 8. 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.

that conclusion is far from clear.

Why would it say: “…without the Consent of Congress….”

That question was answered in 1871 and sheds light on the issue of today:

In 1871 the Attorney General of the United States ruled that: “A minister of the United States abroad is not prohibited by the Constitution from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an officer of that power . . . but the acceptance of a formal commission, as minister plenipotentiary, creates an official relation between the individual thus commissioned and the government which in this way accredits him as its representative,” which is prohibited by this clause of the Constitution. 2013

ftnt: 2013 13 Ops. Atty. Gen. 538 (1871).

All of that is from: Constitution Annotated | Congress.gov | Library of Congress, in particular: https://www.congress.gov/content/conan/pdf/GPO-CONAN-REV-2016-9-2.pdf.

If you read the Emoluments Clause to prohibit Trump from representing another government, unless Congress consents, it makes sense as written.

Those falsely claiming that Trump must divest himself of his business interests and/or put them in a blind trust under the Emoluments Clause, Lawrence Tribe comes to mind, are thinking of a tradition of presidents using blind trusts.

But tradition doesn’t amend the Constitution.

Any story saying that the Emoluments Clause compels president-elect Trump to either divest himself of assets and/or use a blind trust are false.

PS: I have admired Prof. Lawrence Tribe’s work for years and am saddened that he is willing to sully his reputation in this way.

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