What constitutes a violation of the Emoluments clause?
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.
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.