What constitutes a violation of the Emoluments clause?

by on January 3, 2017 at 12:59 am in Books, Current Affairs, Law, Political Science, Uncategorized | Permalink

I’ve been wondering about this question, and the internet isn’t much help (here is background from Jonathan Adler if you are starting from scratch).  Say a foreign power pays money to my publisher, agent, or speaker’s bureau — does that count?  Intuitively, I would think so, even though the income is legally domestic.  But then it seems the clause is very difficult to define.  If I own an overseas business, or receive overseas royalties, or sell intellectual property overseas, must I trace the identity of every customer?  What if Angela Merkel bought a copy of one of my books translated into German?  Am I then, through the medium of royalties, taking money from a foreign power?  What if the Chinese government bought up a million copies of one of my books?  What if it is a Chinese shell company of unknown origins (they are common), which might be either state-owned or private, did so?  Or what the company is private, but itself owned by a state-owned company?  49 percent?  51 percent?  What if a state-owned Chinese company makes a large grant to a private individual, who then buys a million copies of a book?  Don’t library systems buy books, and aren’t most of them state-owned?

This line about China struck me:

Print sales, dominated by the country’s 580 state-owned publishing houses, are now worth 44 billion yuan ($7 billion).

Of course much of the income for the Obamas, during his time in office, came from royalties from book sales, including abroad and also in China.  For instance:

A large portion of the royalties came from sales overseas, an indication of the president’s popularity abroad. The tax return indicates that $1.6 million of the total book income was taxable in “various” foreign countries.

I cannot trace whether Obama’s Chinese publishers are state-owned companies, but most likely they are.  Some of the other Obama foreign publishers might be too.  Does that count as a violation of the clause?  Presumably there are foreign translations of some of Trump’s books too, or there will be.  JFK also had published books before he became president, and likely there were foreign rights sales of those too.

I get that this is a smaller issue, quantitatively speaking, than Trump’s foreign ventures, though foreign income was significant for President Obama in 2009 as a share of the total.  (Not to mention the difference in transparency or other possible differences in administration…I am not not not not not saying this is equivalence, so please don’t throw your weak-minded, question-begging, mood affiliated doctrine of “false equivalence” at me!)  And besides, the constitutional clause doesn’t say the payment has to be a large one.  At the time, I don’t recall anyone, myself included, thinking this was a violation of the emoluments clause, so again I am back to wondering what the clause exactly means.  In any case, you can imagine critics charging, rightly or wrongly, that a president might try too hard to be popular abroad.

Is selling intellectual property somehow different than selling hotel rooms?  Or is the unorthodox, Putin-oriented, “in your face” side of the Trump administration why we are framing the cases so differently?

“To whom” does a payment really go anyway?  And what is a “foreign power”?  What is a “state-owned company”?  The people at the WTO will tell you such questions can make your head spin.

china-books

Is the future equilibrium simply that future American presidents can be bribed through the sale of book and other IP rights, combined with aggressive “marketing” from foreign state-owned companies?  I would gladly learn more about this topic, and I am afraid that this year I am about to.

1 Asher January 3, 2017 at 1:30 am

The answer is that the Emoluments clause is, and is meant to be, a political clause. It is not a criminal offense to receive emoluments, rather it makes you unfit for office and therefore provides a basis for firing or impeaching someone. It is “just cause” for political jobs.

“Just cause” for politicians doesn’t require the clarity of criminal statutes. The Founding Fathers wanted to leave the question of firing politicians to other politicians, but they wanted to provide a degree of guidance.

2 So Much For Subtlety January 3, 2017 at 4:06 am

If Hillary did not violate it when she was getting hundreds of millions of dollars for her “charity” – 96% of the money being spent on her, her family and her campaign – there is no way that Trump will be held accountable no matter what he does.

Not unless Romney or someone like him can convince a lot of Republicans to vote with the Democrats.

But it is nice to see the wave of change that has come over the Commentariat now the White House has an “R” in it.

3 Just Another MR Commentor, King of the Komments January 3, 2017 at 7:32 am

Forget everything else, Trump needs to stick to his promise in the debate to put Hillary in jail. If he accomplishes nothing else he must accomplish this.

4 James January 3, 2017 at 7:51 am

We can’t have a rational conversation about Trump and the emoluments clause if your starting point is utter nonsense.

5 Just Another MR Commentor, King of the Komments January 3, 2017 at 8:07 am

Lock Her Up

6 Cassiodorus January 3, 2017 at 9:40 am

You mean 96% of Clinton Foundation donations didn’t go into her piggy bank? This is news indeed…

7 Ricardo January 3, 2017 at 10:21 am

No, I see no evidence 96% of foundation donations went into her “piggy bank.” Care to demonstrate otherwise with links to primary sources?

8 Daniel Weber January 3, 2017 at 12:04 pm

I don’t think highly of the Clintons, but they aren’t stupid. Even if they were very short-sighted and greedy, they would not just pass 96% of the funds to themselves. Someone’s gonna check.

9 So Much For Subtlety January 3, 2017 at 6:38 pm
10 Chris January 3, 2017 at 7:26 pm

Only if you ignore the charitable work they actually do.
http://www.factcheck.org/2015/06/where-does-clinton-foundation-money-go/

11 Ricardo January 3, 2017 at 11:41 pm

“Take it up with their IRS filings”

Their IRS filings provide no evidence that 96% of the organization’s funds went into the personal accounts of members of the Clinton family or was spent on Clinton’s presidential campaign, all of which would be serious breaches of the law. Indeed, the article you linked to does not even feature the number 96, which leads me to believe the original claim is based on some transparently bogus source you are too embarrassed to link to.

12 Pshrnk January 3, 2017 at 10:02 am

Hillary was not president.

13 derek January 3, 2017 at 10:07 am

That means she can be prosecuted. The president can’t.

14 The Other Jim January 3, 2017 at 11:14 am

>Hillary was not president.

And she still isn’t, having lost the historic 2016 election.

15 Vivian Darkbloom January 3, 2017 at 2:13 pm

Since when does that clause only apply to Presidents?:

“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.”

In fact, this falls under Article I (Legislative Branch), not Article II (The Presidency).

Are you suggesting that US Senator and/or Secretary of State are not an “office of profit or trust…”?

16 Chris January 3, 2017 at 1:31 pm

According to Charity Watch passthrough is 88% at CGI. But I guess it’s a post truth world, so make it whatever you want.
http://www.snopes.com/clinton-foundation-scores-higher-as-a-charity-than-the-red-cross/

17 JWatts January 3, 2017 at 2:38 pm

From your link:

“The Clinton Foundation received four out of four stars — the highest rating that Charity Navigator gives after a close look at a charity’s finances. The rating is based on annual federal tax documents. It was not intended to reflect whether Hillary Clinton kept donors to her family’s foundation at appropriate arm’s length or provided favored access as secretary of state

The Clinton Global Initiative waived its membership fees for Charity Navigator, as it does for nonprofits, nongovernment organizations and social entrepreneurs. Charity Navigator treated the $20,000 waiver as an in-kind donation. Thatcher said his group joined Clinton’s to mingle with world leaders and promote its ratings.

So, the rating agency that gave a 4 star rating got a large donation and ” joined Clinton’s to mingle with world leaders and promote its ratings.”

That’s so Clintonesque.

18 Chris January 3, 2017 at 3:28 pm

No. Charity Watch, which had no connections to the CGI, gave them an A. Charity Navigator vacillated over rating them. I provided the link cause I thought it provided a pretty balanced account of the whole saga. My only point was that externally validated 12% overhead could not equal “96% into her personal piggy bank.”

The Clinton’s appeared to have relied on buck raking speeches to earn their coin.

19 JWatts January 3, 2017 at 9:23 pm

“No. Charity Watch, which had no connections to the CGI, gave them an A. Charity Navigator vacillated over rating them.”

Try re-reading the link I quoted: “The Clinton Foundation received four out of four stars — the highest rating that Charity Navigator gives after a close look at a charity’s finances.

“The Clinton’s appeared to have relied on buck raking speeches to earn their coin.”

For actual cash, I expect that’s the case. However the Clinton’s accrued many fringe benefits that accrue to running a 2 billion charity with a high level US politician whose expected to one day be President.

I’m curious to what the donations to the Clinton foundation will be in 2017 versus the previous 2 years.

20 Britonomist January 3, 2017 at 7:18 pm

The 96% number is yet another fake news figure, and you’re a dupe for believing something so unambiguously stupid.

21 Andy January 3, 2017 at 1:32 am

Great post. At the Yale Reg blog, I explained why the arguments being used against Trump would also require Obama’s impeachment: http://yalejreg.com/nc/should-congress-impeach-obama-for-his-emoluments-clause-violations/

22 prior_test2 January 3, 2017 at 3:05 am

Wait, there are arguments about impeaching someone who has not even taken office yet?

This post truth world is quite the exciting adventure ride, it seems, with apparently just about everyone wanting to get on board.

23 TMC January 5, 2017 at 11:09 am

Obama hasn’t taken office yet? What year is it where you live?

24 karl gusic January 3, 2017 at 2:00 am

You’re kidding, right?
Now that that’s out of the way, I can’t see royalties derived from foreign sales — even from a state-owned publisher — as a violation.This is an unavoidable state of affairs in that particular trade. I would consider it a violation, however, if a state-owned publisher fraudulently inflated sales and royalty payments.
Now that that’s also is out of the way, I wonder if Tyler might consider addressing the real-life financial adventures we — and our anxiously awaited president — face.

25 dan1111 January 3, 2017 at 6:04 am

Tyler’s point is laughable because of a standard you just randomly made up? Heh.

Anyway, of course it’s avoidable: Obama could choose not to sell any books through state-owned foreign publishers.

26 karl January 3, 2017 at 4:42 pm

Yes, it is. Because any standard in this case will be made up — see Asher’s first comment above. He’s right.
And I never mentioned Obama because pretty much all recent presidents and contenders have written books. Why do you mention him, I wonder?
As for foregoing state-owned publishers, later comments here explain why that’s a non-factor — excepting fraud, of course.

27 dan1111 January 4, 2017 at 3:53 am

“Because any standard in this case will be made up”

This may be true, but surely this doesn’t invalidate discussion of what the clause should mean. If people are applying a standard inconsistently, they ought to be called out. The arbitrary exercise of power is a bad thing that should be opposed.

“Why do you mention him, I wonder?”

Because he was Tyler’s main example. (I don’t think there is anything wrong with Obama selling books. It wasn’t meant to criticise him.)

28 Thiago Ribeiro January 3, 2017 at 6:33 am

“I would consider it a violation, however, if a state-owned publisher fraudulently inflated sales and royalty payments. ”

How do you know they are not doing so?!

29 prior_test2 January 3, 2017 at 7:15 am

Ask Gingrich, he has a bit of experience of how the publishing industry works – ‘Rep. Newt Gingrich (R-Ga.), who spurred the ethics investigation of House Speaker Jim Wright (D-Tex.) and focused attention on Wright’s 55% book royalties, has an unusual book arrangement of his own.

When Gingrich and his wife, Marianne, wrote the nonfiction book, “Window of Opportunity,” with David Drake in 1984, they signed a contract to share a standard 10% hard-cover royalty. But they also took the unusual step of setting up a limited partnership, which raised $105,000 from Republican political activists and business people around the country, to promote sales of the book. Normally, a publisher pays for promotion.

The idea, Gingrich said in an interview late Friday, was that a large publicity budget could “force a best-seller. I was real naive.”

The 21 investors in the COS Limited Partnership each put up $5,000 and were to split half of the publisher’s profits. But sales of the book were modest, and there were no profits. The publisher, Jim Baen, of Baen Enterprises, lost money on the venture. This created a tax benefit for the partners.

Gingrich did not have a share of the partnership, but his wife said in an interview Sunday that she has been paid close to $10,000 by the partnership for her work as general partner. She said she put no money into COS but got a 2% share and thus a portion of the tax benefits from the partnership’s continuing annual losses.

The congressman said the partnership was his idea. It spent $70,000 for promotion. Nearly $6,000 of the other $35,000 remains, Marianne Gingrich said, with the rest of the money going to her and for legal, accounting and other costs.

Baen, who did not know Gingrich before he met him at a conference on space and technology, said he has not entered into such a promotion partnership before or since and did not know of another like it in the publishing industry.’ http://articles.latimes.com/1989-03-20/news/mn-189_1_unusual-book

30 Thiago Ribeiro January 3, 2017 at 7:35 am

It is sad.

31 leppa January 3, 2017 at 8:15 am

Interesting.

“(Jim wright’s book royalty) incident was controversial and was a part of the increasing partisan infighting that has plagued the Congress ever since. The original charges were filed by Newt Gingrich in 1988 and their effect propelled Gingrich’s own career advancement to the Speaker’s chair”

(Wikipedia.on Jim Wright.)

32 Andre January 3, 2017 at 2:30 am

Republicans have been calling for Obama’s impeachment since the second he was sworn in without any bribery or fancy pants Emoluments. If a publisher in China or Russia had ordered 50 million copies of his books you don’t think they would have thrown the clause in his face?

Whatever the definition of the word I think we’ll see plenty of the plain old pay to play and quid pro quo to type of bribery that any average Joe can understand. If anyone actually cares is another matter of course.

33 Dzhaughn January 3, 2017 at 2:39 am

I.e., status quo.

34 derek January 3, 2017 at 3:55 am

Have they? I must have missed it. Oppose his agenda yes, but calls for impeachment?

35 prior_test2 January 3, 2017 at 7:22 am

So, you just might want to get around the Internet a bit more, though it is fair to say that no actual articles of impeachment were ever written – ‘During the presidency of Barack Obama, certain Republican congressmembers have stated that Obama may have engaged in impeachable activity and that he may face attempts to remove him from office.[1] Rationales offered for possible impeachment included allegations that Obama was born outside of the United States, that he allegedly allowed people to use bathrooms appropriate for their gender, an alleged White House cover-up after the 2012 Benghazi attack and failure to enforce Immigration laws. No list of articles of impeachment was ever drawn up and proposed to the Judiciary Committee.’ https://en.wikipedia.org/wiki/Efforts_to_impeach_Barack_Obama

36 chuck martel January 3, 2017 at 9:12 am

The guy that cuts my lawn called for an impeachment of BHO. So did the bartender at Applebees down the street. I don’t know if they have blogs, they told me themselves.

37 Vivian Darkbloom January 3, 2017 at 2:44 am

Similar discussions have arisen over the “missing” amendment to the Emoluments Clause (Art I, Sec 8) that was submitted to the states in 1810 for ratification. The proposed amendment, which some zealots argued was actually ratified, proposed to strip persons of citizenship who accepted foreign titles (and thus the ability to hold most public offices) and also to remove the provision that allows Congressional approval as an exception to the general prohibitions.

Jol Silverstein, writing in the Southern California Interdisciplinary Law Journal summed up the issue pretty well, at least in the second clause of the following sentence, and that latter statement applies equally well to the sudden sanctimony over the Emoluments Clause:

“But the American public has expressed little if any concern perhaps because such awards are symptoms of divisions in society, not their cause.”

http://www.thirdamendment.com/8SCIDLJ577.pdf

He was discussing, among other things, the alleged problem of numerous American office holders accepting knighthoods from the UK, etc. Perhaps he was a bit premature; however, as the even greater divisions in society today are the likely source of this sudden faux concern rather than any legitimate concern over compromising the independence of our elected officials.

38 prior_test2 January 3, 2017 at 3:02 am

‘so please don’t throw your weak-minded, question-begging, mood affiliated doctrine of “false equivalence” at me’

Poor Prof. Brer Cowen, don’t throw him into the false equivalences, no sir, not there, anywhere but there, not in into the mood affiliated patch of false equivalences.

39 dan1111 January 3, 2017 at 6:09 am

I think this spambot is malfunctioning.

40 prior_test2 January 3, 2017 at 7:17 am

Spambot – ‘A spambot is a computer program designed to assist in the sending of spam. Spambots usually create accounts and send spam messages with them. Web hosts and website operators have responded by banning spammers, leading to an ongoing struggle between them and spammers in which spammers find new ways to evade the bans and anti-spam programs, and hosts counteract these methods.’ https://en.wikipedia.org/wiki/Spambot

41 dan1111 January 3, 2017 at 7:47 am

Nice try…you’re not going to trick me into clicking on your fake spam link. What is “wikipedia” supposed to be anyway? Sounds made-up.

42 Daniel Weber January 3, 2017 at 12:07 pm

Good point.’); DROP TABLE posts; —

43 JWatts January 3, 2017 at 2:43 pm

“I think this spambot is malfunctioning.”

I suspect that it’s working as intended. Though admittedly not very well.

44 Adovada January 3, 2017 at 6:12 am

If doing a good job as president involved making the US and to an extent the entire world more peaceful and prosperous, wouldn’t having a president who held a broad global portfolio of assets create aligned incentives? Shouldn’t the president and his cabinet have a large stake in the success of their policies? Aren’t wealthy politicians more difficult to bribe? Finally, why do we think an ideal group of people with more aligned incentives and a higher capacity to run the executive branch of the government would be relatively non-wealthy lawyers, academics and career politicians?

45 Unanimous January 3, 2017 at 3:06 pm

No. Yes. No. Career politicians have the incentives that your questions imply. Their status depends on the success of their policies. I don’t know of any academics running an executive branch of politics. Non-wealthy lawyers in political positions are generally career politicians.

46 dr January 3, 2017 at 3:29 pm

Ah yes, the old “rich people don’t need to steal” argument, coupled with a new “personal enrichment correlates with global enrichment” argument. Each one, as stupid as the other.

47 Nanoprof January 3, 2017 at 6:39 am

I think a president buying something from a foreign source at market rate is considered fine, but getting a sweetheart deal to buy a foreign item at below market rate is not. Maybe one could apply the same reasoning to transactions in the other direction. The difficulty then moves to distinguishing “sweetheartness” from the touch of an invisible hand.

48 dan1111 January 3, 2017 at 6:49 am

“What we think is a conflict of interest” is one thing, while “what the constitution actually says” is another.

The relevant clause doesn’t mention anything about corruption or favorable treatment; it appears to prohibit pay of any kind from a foreign government.

49 msgkings January 3, 2017 at 12:26 pm

Indeed, constitutionalists don’t say ‘well the 2nd amendment is really about militias etc’ they say ‘it says what it says’. So either the emoluments clause is to be obeyed to the letter like the 2nd, or doing that is a mistake, for both.

50 JWatts January 3, 2017 at 2:55 pm

A strict reading of the Emolument clause doesn’t indicate that Obama violated it or that Trump is likely to violate it. It’s possible the Clinton Foundation did violate it.

Strictly speaking the emolument clause doesn’t say you can’t receive money from a foreign economic transaction. It bans gifts, fees, offices, titles and direct salaries from ‘any King, Prince, or foreign State’. It’s doubtful if a foreign government bulk purchase of an Obama book would be a gift. You could quibble over the word “fee”, but American Presidents have sold books to international audiences for at least a century.

“Through the Brazilian Wilderness: Theodore Roosevelt .”

By the same token, Trump is engaging in foreign commercial transactions and since his children will be running the enterprise, that hardly seems to be a violation of the clause. This is all much ado about nothing.

Indeed, it’s ironically similar to the Trump involved attack on President Obama’s nationality.

51 msgkings January 3, 2017 at 3:30 pm

Agreed this is much ado about nothing, I was just opining about the usual, political hypocrisy (both sides).

52 Adovada January 3, 2017 at 7:12 am

This discussion reminds me a bit of the amateur versus professional olympic athlete issue….at the end it’s impossible to easily define, just as conflicted versus non-conflicted is here, and thus a waste of time to do so. The people are the court here and if things end up so patently corrupt that house and senate members fear for their seats at midterms, impeachment type activities will surely occur.

53 Steve January 3, 2017 at 7:26 am

I agree with Adler’s answer: “Who knows?”

54 Bill January 3, 2017 at 7:40 am

I am sure that taking fair value for a book, which US citizens purchase at the same price and whose value is set by a market, constitutes a violation of the emoluments clause when the same book is sold into a foreign market at a price determined by the market.

Only on this post would such a claim be made.

On the other hand, if I have some apartments in NY, and you are a member of the Russian mafia and good friend of Putin, and you offer to pay more than the posted price for the apartment in order to attend events ar Mar a Largo and meet with your landlord to discuss politics it is not a violation.

55 dan1111 January 3, 2017 at 9:11 am

You and several others are laughing off Tyler’s claim since the underlying act seems ok…but that is exactly the point.

A straightforward reading of the emoluments clause could be seen as prohibiting benign stuff like Obama selling books. It’s not clear that there is a coherent reading in which Trump would be guilty but not Obama. Overall, it just isn’t easy to apply the language to the modern commercial reality in a sensible way to combat the kind of corruption that people are worried about.

Trump may be “worse” (whatever side of the fence you sit on, he clearly does have more legitimate conflict of interest issues as an international businessman), but that is not the point.

56 Borjigid January 3, 2017 at 10:54 am

Surely there is a reason why the Founders used “emoluments” rather than a broader term like “payments”?

57 tedm January 3, 2017 at 8:00 am

RE: an example of book royalties presenting an ethics issue that resulted in the removal of one of the most powerful politicians in the United States – but domestic so an ethics issue, not foreign power emoluments issue

Jim Wright, Speaker of the House
http://articles.latimes.com/1989-04-18/news/mn-2027_1_wright-aide-public-man-worth-printer
and
http://www.nytimes.com/1988/06/12/us/behind-jim-wright-s-book-his-friends.html?pagewanted=all

excerpt
One friend of Mr. Wright here said he bought $6,000 worth of the paperbacks at $5.95 apiece. The friend, S. Gene Payte, a developer, said he did so to help Mr. Wright without violating Federal election laws. Those laws allowed him to contribute no more than $1,000 to the Speaker’s Congressional campaign.

”I was just trying to make a contribution to Jim’s income,” said Mr. Payte, who has known Mr. Wright since 1954. ”And I couldn’t give him any money. There are rules against that. So I bought his book.” ‘No Big Money Here’

58 Art Deco January 3, 2017 at 9:06 am

Wright produced a volume of stale speech excerpts for a printing company run by an associate. He was then given a 55% royalty on sales. At the time, hardback royalties were typically 15% and paperback royalties 7.5%. The associate admitted it was just a way for them to make a buck (in Wright’s case, to launder the bribes).

Wright was also embarrassed by the revelation that he’d pulled strings in 1975 to secure the release from jail of one John Mack. Mack’s history was an indictment of the judge who supervised his case, if not the Virginia judiciary in toto. For baffling reasons he’d attempted to murder a perfect stranger named Pamela Small in 1973, bashing her on the head with a hammer and cutting her throat umpteen times. Astonishingly, she survived. For this, a witless Virginia judge (who was never named in news stories) sentenced him to a term in the county jail. Wright secured his parole after two years and secured him a job in a Capitol Hill mailroom. He was promoted through the ranks over 14 years and ended up as the staff director of an arm of the Democratic House caucus, paid $89,000 a year. Read Margaret Carlson’s period article on the case and what it revealed about the culture of Capitol Hill – reporters and Congressional staff alike. John Mack was the brother of Wright’s then son-in-law. Wright’s excuses about the case (taken at face value) indicated that he so enjoyed this sort of wire-pulling that he never asked questions about the beneficiary.

59 Evan Harper January 3, 2017 at 9:06 am

> please don’t throw your weak-minded, question-begging, mood affiliated doctrine of “false equivalence” at me

tfw a once respected blogger starts preemptively lecturing his audience in the style of a speechifying melodrama villain

60 dan1111 January 3, 2017 at 9:16 am

That is one of the best sentences Tyler has written in awhile. The more often he goes Snidely Whiplash, the better.

61 anon January 3, 2017 at 9:38 am

“Not to mention the difference in transparency or other possible differences in administration…I am not not not not not saying this is equivalence, so please don’t throw your weak-minded, question-begging, mood affiliated doctrine of “false equivalence” at me!”-

I don’t think this topic risks false equivalence. There are some interesting things to consider about what constitutes divestment, and how “blind” any economic activity can be.

That said, this loud denouncement of “false equivalence” itself might be a guilty hangover from 2016. If we had less then, we would be better off now.

62 Careless January 3, 2017 at 4:58 pm

that was the least Tylery quote I can recall. I actually scrolled back up to make sure it wasn’t an Alex post.

63 Willitts January 3, 2017 at 10:17 am

Asher’s comment up top is the closest to being correct. An unlawful emolument is whatever Congress believes it to be.

But if we want to go down the rabbit hole of legalisms, it would take a far more material influence than royalties from overseas book sales to complete the offense. Certainly such purchases could be the conduit for unlawful emoluments but they are not unlawful per se.

Others, above, have already tread this legal ground. If no president with foreign sourced income has been impeached for violating the emoluments clause, then either the terms of that clause have never been breached or Congress hath shewn no stomach for its enforcement except circumstances heretofore unrealized.

64 tjb January 3, 2017 at 11:33 am

Trump-appointed swing Justice Newt Gingrich to author the Supreme Court ruling in Trump’s favor, though the majority rules that the decision cannot be used as a precedent.

65 JCW January 3, 2017 at 10:18 am

I think the emoluments clause is more along the line of porn–you know a violation when you see it–than of a bright-line standard, i.e. running a red light. Obviously, that creates a murky space (at least some members of the churches I grew up in would consider some art pornographic), but impeachment is a murky process anyway, given that it’s a court of politics, rather than a traditional court of law.

66 dan1111 January 3, 2017 at 10:44 am

Not having a clear standard for impeachment seems bad, since it could be used for political reprisals to take out opponents. Admittedly, “high crimes and misdemeanors” is not so clear either, but I think for that at least everyone can agree that the politician has to be guilty of a crime according to the law.

67 Willitts January 3, 2017 at 10:56 am

@Dan1111

What you’re saying is reasonable, but the political process is not so reasonable. Other than having the proceedings run by the Chief Justice, nothing prevents the Senate majority from removing a president for any reason or no reason at all. The only check on its power to do so is backlash from voters. For that reason Congress would not impeach and remove a president for light or spurious reasons. At least some of a president’s political opponents will have some semblance of honor and duty. But there is no legal impediment for removing the president over book royalties or a dollar’s worth of interest from a foreign bank.

I said something similar with the nomination of Judge Garland to the USSC. The process of confirmation is purely political. The Senate can deny its consent for any reason or no reason at all. Nothing in the Constitution mandates that they take a vote, hold hearings, or fill a vacancy by a date certain.

I wish the Constitution were less ambiguous than it is, but if wishes were fishes the world would be a sea.

68 Patrick January 3, 2017 at 10:22 am

JFK was at least quite safe as I don’t think anyone is suggesting that his father was a foreign power.

69 Meets January 3, 2017 at 11:20 am

This is something 99% of people have never head of before it became an anti-Trump meme

70 Andy January 3, 2017 at 3:02 pm

Only 99%? Probably closer to 99.9999999%

71 msgkings January 3, 2017 at 3:32 pm

Only 33 people then?

72 Catchling January 12, 2017 at 8:44 am

“The average American has heard of it” is a lousy standard for constitutional argument, especially since a simple reason is that the clause might simply never have been tested before. By that logic the military could forcibly quarter soldiers in people’s homes, because doing so hasn’t come up in recent memory and thus few Americans could explain that amendment.

73 CM January 3, 2017 at 12:58 pm

There are a large number of Office of Legal Counsel opinions regarding the application of the emolument clause to federal employees (including one written by Sam Alito regarding whether the emoulments clause precluded a NASA scientist from being paid a nominal amount by the University of New South Wales to review a Phd thesis – it did not, btw, because the university was “functionally” independent from the Australian state). Most of these seem to focus on whether a foreign entity constitutes an arm of a foreign state or the recipient holds an office within the clause’s scope. They are searchable at: https://www.justice.gov/olc/opinions. I took a quick look and didn’t see any about book royalties. But the analysis (that I skimmed) would imply that whether royalties from foreign book sales are prohibited would, at the threshold level, turn on the independence of the state owned companies rather than the identity of the book purchasers. And it would imply a total ban on receiving any economic benefit directly from a foreign government, such as a payment to your agent or speakers’ bureau.

Anyway, that the OLC, as well as Obama’s opponents in Congress and the conservative movements, never thought to scrutinize his receipt of foreign book royalties should not comfort Trump who is (reportedly) deriving economic benefits directly from foreign governments. That seems like a clear violation of the clause (i.e., if a NASA scientist can’t accept payment from the Australian government to review PhD theses, President Trump should not be able to benefit from foreign diplomats using his hotels).

74 Boonton January 3, 2017 at 3:07 pm

1. I suspect Obama sold the rights to publish his book internationally before he was elected president. That would mean Chinese publishing houses could buy the rights to translate and sell his books in China without resulting in any payment to Obama at all when he was President.

2. I believe the ‘blind trust’ has been the solution for existing Presidents for a while now. Say a President has a 401K with $100K shares in a S&P 500 index fund. Clearly the S&P 500 companies get plenty of income from foreign gov’ts and entities, however the blind trust removes the President from knowledge of what he owns in his investment account. A foreign gov’t then cannot knowingly pass money to the President via one of his investments as they would not know.

3. In terms of book sales there are a few factors at play:

A. Only a tiny portion of the price you pay for a book goes directly to the author. If you want to pass $1M to Tyler, you have to buy a lot more than $1M of his books.

B. Authors I suspect do not get reports as to who buys their books. If China instructed their state owned libraries to buy $25M worth of his books, all Tyler would see is royalties jump a lot but he’d have no idea if China or Russia was behind it or he simply got more popular.

C. If the royalties are deposited into a blind trust, then the author wouldn’t even be aware that he suddenly had an influx from a foreign gov’t buying up copies of his books.

D. A President could sell the rights to his royalties in exchange for a lump sum payment before he takes office (or even a lump sump payment that covers only royalties for the time he is in office). In that case he would enter office with a lump sum and mass book buying by a foreign gov’t would not result in any additional enrichment to himself.

75 JWatts January 3, 2017 at 3:24 pm

“1. I suspect Obama sold the rights to publish his book internationally before he was elected president. That would mean Chinese publishing houses could buy the rights to translate and sell his books in China without resulting in any payment to Obama at all when he was President.”

President Obama received foreign royalty payments for books sold while he was President.

He earned $1.6 million in foreign royalty payments in just his first year in office (2009).

“A large portion of the royalties came from sales overseas, an indication of the president’s popularity abroad. The tax return indicates that $1.6 million of the total book income was taxable in “various” foreign countries.”

http://www.washingtonpost.com/wp-dyn/content/article/2010/04/15/AR2010041504485.html

76 Boonton January 3, 2017 at 3:48 pm

It seems like then B would apply to Obama. Royalties would be like their own blind trust assuming publishers only bother to report to the author what the totals are and don’t provide any real information about who is actually buying the books.

77 Boonton January 3, 2017 at 3:51 pm
78 Enrique January 4, 2017 at 2:54 am

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