The Presidential Emolument Clause

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.  Art II, Sec 1, cl 7

Pursuant to this clause, also called “The Domestic Emolument Clause,” the national government may not pay the president more than the salary as stated at the beginning of the presidential term. The states may not pay the president period. “Emolument” is a word used very broadly in the 18^th century to include nearly any sort of tangible benefit or profit that a person might receive by virtue of labor, ownership, position, or status. 

The clause is clearly an anti-corruption provision. A president might be avaricious, and Congress, executive officers, or states might want to ingratiate themselves with the country’s chief executive.

Prestwick Airport and Trump’s Turnberry Resort

Recent reports have brought the Presidential Emolument Clause attention that it has not seen in 230 years. The Air Force has apparently increased its use of Glasgow Prestwick Airport as a fueling and repair stopover for flights between the US and  Kuwait and Afghanistan. As a result of negotiations between Turnberry and Prestwick in 2014, the Trump property was moved up on the list of accommodations used by the airport for customers requesting stopover assistance. There is not yet clarity on the number of Turnberry stays paid for by the Air Force, or the cost of each stay, although it appears that at least some of the room rates were reduced below Turnberry's usual $300 range. It is a little hard to square what has been said about total payments (reported to be in the $200,000 range), with what has emerged about the number of the US military guests and the room price figures. As yet undisclosed is the number of vacant rooms on the relevant dates in the several hostelries closer to Prestwick than Turnberry – and cheaper. 

The whole world knows that profits from any Trump property go to Trump. So we have here what very much looks like an emolument from the federal government going to the president.

Defense:  Only Payments for Presidential Services Count 

A “White Paper” written for Trump back in 2017 by the Morgan Lewis law firm, interpreted “emolument” in the Foreign Emolument Clause. It argued that the president would not violate that clause in maintaining his manifold business dealings with representatives of foreign states and business entities owned in whole or part by foreign states. None of these, in the view of the White Paper could give rise to “emoluments” in the 18th century sense. Instead the word, as then used, covered only “a payment or other benefit received as a consequence of discharging the duties of an office.” They took "an office" to mean the national office, e.g. the presidency.

Suppose that the State of Florida created a new “Florida Entrepreneur of the Year Award” with a prize of $100,000 and an oil portrait of the winner to hang in the state house. Its first recipient was Donald J. Trump for his creative entrepreneurship with the Mar-a-Lago Club, Trump International Golf Club, Trump National Golf Club, and Trump Doral. The citation accompanying the award went into detail about these four properties, never mentioning that Trump is president of the United States. There was, however, some evidence surfaced by reporters that a desire to ingratiate the state with the president had something to do with the legislature’s vote and the governor’s signing of the law. As the award by its terms had nothing to do with the presidency, it was not a violation of the Presidential Emolument Clause. Right Morgan Lewis?  Surely not.

Defense: Business in the Ordinary Course, Including Hotel Services Are Not Emoluments.

 “That innkeeper demanded a far greater emolument than warranted for a hard bed and watered ale.” Ralph Nickleby didn’t say this in Dickens’s Nicholas Nickleby, but he easily could have, and Ralph would have been a young man when the Constitution was adopted. There never was a restriction of “emoluments” to public office or any other sort of office. Payments to an owner for use of space and payments for services provided always were “emoluments.”

 

Defense: No Proof of Corrupt Intent.

Let us assume that the president did not order the use of Prestwick and did not suggest to anyone in position to pass the word down through channels that it would be nice if the financially pressed airport were given some life support. Further assume that the Air Force officers who made the Prestwick decision didn’t know about Turnberry. Someone in the Air Force knew about the Turnberry connection, of course, because someone dispersed the payments to the resort. Perhaps, however, they did not communicate with the decision makers.

Even were this all true, the Turnberry payments, because they benefited Trump, violated the Presidential Emolument Clause. The clause does not specify emoluments made with corrupt intent. All emoluments from the federal or state governments are prohibited. That is the law in black and white.

Why is the constitution so tough on this one federal officer? The chief executive has many ways directly and indirectly of benefiting those who show him friendliness. The temptation to curry favor is great, and the mechanisms by which favor currying could be rationalized as business in the normal course are many. “Don’t make payments to the president or any entity owned by the president” is clear.  Think of what an enforcement nightmare this would be: “Don’t make payments to the president or any entity owned by the president if you think doing so might incline the president or any friend of the president in the executive branch directly or indirectly to benefit your career or your state or agency.”

Trump Tower, Bedminster, and Mar-a-Lago.

The problem did not start with Prestwick-Turnberry. All payments from  the US Treasury to the Trump Organization for accommodations, meals, or golf carts for Secret Service agents or presidential aids, advisors, or guests violate the Presidential Emolument Clause. If, as I recall, the Secret Service was renting space in Trump Tower at the time of the inauguration, then there has been a continuous violation of the clause throughout the Trump presidency.

Remedy.

On the sweeping assumptions I made above, the Prestick-Turnberry violation of the Presidential Emolument Clause would not be an impeachable offense. It would not even warrant a reprimand for the Air Force officers involved. Now that the facts are known, of course, the clause requires the Air Force to stop doing business with Turnberry. In the unlikely event this means cutting the flights into Prestwick, and if Prestwick stopovers are otherwise in the national interest, that is just one of the unfortunate consequences of president who declines to divest himself of holdings that might, in the normal course, do business with the government of the United States or with any state.  

For Mar-a-Lago and Bedminister, future violations could be prevented by divestiture, by not charging for those accommodations, meals, and golf carts, or by Trump playing his golf elsewhere. There are other courses at least as convenient to 1600 Pennsylvania Avenue. President Obama, I bet, never played a Trump course. He often chose military golf courses, which must also have cut security costs.

Were a president to receive a check for $50,000 from the State of Delaware, with the notation “Keep up the Good Work,” the check must be sent back. If through inattention it got into the president’s bank account, it would have to be refunded to Delaware, with a note “Don’t do this again!” All amounts paid out of the United States Treasury to the Trump Organization or any of its holdings should be refunded.

Failure to stop ongoing violations of the Presidential Emolument Clause and failure to refund past violations are potentially impeachable offenses. The question is not what the president believes to violate the clause but of what does violate the clause.

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