This is an edited transcript of Dahlia Lithwick’s conversation about the Emoluments Clause with Zephyr Teachout, an associate professor at the Fordham School of Law and the author of Corruption in America. The conversation was originally broadcast on Episode 56 of Amicus, Slate’s legal affairs podcast. Amicus transcripts are available exclusively to Slate Plus members. To read Part 2 of the Episode 56 transcript, click here.
Dahlia Lithwick: The Emoluments Clause. I’m going to read Article I, Section 9, Clause 8 of the Constitution so that our listeners know what we’re talking about. It says:
No title of nobility shall be granted by the United States: And no person holding any office or 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.
Zephyr, what is the Constitution driving at with that language? And what is an emolument?
Zephyr Teachout: One part prohibits taking gifts, and the other part prohibits taking emoluments—basically a payment. The simple idea is you don’t want your secretary of state on the payroll of the French government. That would be bad.
The imagined situation, at the time of the clause, was elaborate gifts, gifts worth a lot of money. Or some kind of stipend from a foreign government.
You read the clause. One of the things to notice is how insistent and petulant it is. It’s like the First Amendment. This language of “any kind whatever.” I argue in my book that it represents this fundamental American spirit that we have to fight against foreign corruption, which they recognize as one of the core downfalls of past republics.
And that’s what the founders saw, as they discussed at the Constitutional Convention, that foreign governments would spare no expense to try to influence trade policy in war and peace. Which makes perfect sense, right?
Before the American Revolution, there’s a phrase: jack-boot. Have you ever heard that? It comes from Lord Boot [John Stuart, 3rd Earl of Bute], who had been a prime minister and then a close adviser to George III. I don’t know what really happened, I just know the rumors from several hundred years ago. But the rumor is he took a lot of money from the French government and encouraged George III to make peace while others in England were fighting the opposite. Basically, he took cash in exchange for making foreign policy.
That’s what the founders were worried about. And what we should worry about right now. Because Trump has effectively announced—I mean, he announced that he’s not announcing, but, you know, in Trump world that means he has told us—that as of right now, when he becomes president, he will be taking payments from foreign interests and he will be indebted to the Chinese government.
That’s an outrageous position for an American president, let alone any American officeholder to be in who has power over war and peace and trade.
Lithwick: From what I understand, the clause is violated if he gets anything that is above market value. Is that the line that he can’t cross?
Teachout: That’s actually a separate question, about whether you’re taking a present, which can’t be something that’s greater than market value.
But we’re not even close to the line. Because of Trump’s business empire, he’s regularly getting payments from foreign governments. And both Richard Painter, the ethics lawyer for George Bush, and Norm Eisen, the ethics lawyer for President Obama, have agreed on this, that taking payments from foreign government-owned companies itself violates the Emoluments Clause.
So he needs to divest. This sounds complicated and arcane, but it’s common sense. You don’t want a federal office holder, particularly the president, being in a position where, let’s say, the Bank of China, which he is currently indebted to, can change the terms in order to impact foreign policy decisions.
And one of the things we know about Donald Trump is that he doesn’t like to be a loser, or perceived as a loser. That creates an incredible vulnerability.
Imagine if his businesses aren’t doing well, the tabloids are making fun of his children for running his businesses into the ground. That creates an opportunity for foreign governments to say, “Hey, you know, we can change the terms of his debt, or effect how his businesses are doing,” and, in exchange, get a different trade deal. Make the Trump administration quieter on prosecuting anti-dumping laws, or trade violations with China.
There’s this sort of awful echo of history, where one of the things that motivated the Emoluments Clause was that Benjamin Franklin got a glamorous, decorated snuff box from the King of France. As Edmund Randolph said in the Virginia Ratifying Conventions, we were really worried that if we didn’t have a clause that required Congress to approve this kind of gift, people would say, “Hey, Franklin has been corrupted by the King of France.” That would undermine the American ability to deal in a friendly way with France throughout the war.
Well, just a few years ago, Putin gave a lacquered box to Donald Trump. Obviously that wasn’t a violation of the Emoluments Clause. He wasn’t a president at the time. But there’s this sort of awful echo, of this reintroduction of corrupt gift-giving culture into the American presidency, that is really, really worrying, for national security and for trade.
Lithwick: It’s not just about the gifting. It’s about the appearance that somebody is vulnerable to the gifting, right? This is not just about the gift itself. It’s about making sure that the whole enterprise of governance isn’t tainted by what looks to be bribes or blackmail.
Teachout: Right. It’s not going to take too long before there’s a “coincidence,” where a business transaction comes within several months of a trade transaction. That will call into question the integrity of our trade policy, or our decisions in military affairs. That itself is troubling, as is the actual corruption.
What’s unique about the United States is that, because our trade and military policy has such a global impact, that basically Trump is setting up a honey pot. Trump businesses are going to be attracting states from around the world trying to influence policy. It’s already happening. They may not always be successful, but that’s a troubling, destabilizing situation.
There’s another important part of the clause which I think people haven’t paid enough attention to, which is that it is not just a clause that gives the president responsibility. When it comes to emoluments, Congress has a constitutional role. If you go back to the section that you read, you said without the consent of Congress, the officeholder can’t accept these emoluments. Right?
Teachout: What that means is that Congress has to consent. And what that means is our pressure here shouldn’t just be on Trump, but on every Congress member to say, “Hey, you have an obligation. As a Congress member, you are violating the Constitution right now if you are not actively monitoring the Trump payments and gifts.”
And to be clear, violation of the Emoluments Clause was used as an example of grounds for impeachment at the time of the Constitutional Convention. In the Virginia Ratifying Convention, Edmund Randolph described impeachment processes using violation of emoluments as a reason for impeachment.
This puts a really active responsibility on members of Congress. I don’t want to see members of Congress getting away with saying, “Well, that’s Trump’s decision. You know, he’s following his own lawyers.” No. By not actively monitoring, investigating, either approving or disapproving payments or gifts, members of Congress are violating their own constitutional and patriotic duty.
Lithwick: Trump has said, listen, my kids are going to run the company and there’s no deals—we’ll have just no deals for the next four years. I’m guessing that doesn’t satisfy your reading of the Emoluments Clause?
Teachout: First of all, it just doesn’t make any sense. I don’t know what “no deals” means. A business that isn’t making deals isn’t a business. Consider simple terms of repayment of debt. There’s constant negotiation. It’s just incoherent to say there’s no new deals.
Old school corruption 101 is to say, “Oh, it’s my kids who are doing it, not me.” That’s what Berlusconi and Thaksin in Thailand did. So I don’t think that he’s been clear at all about what’s going to happen, except for one thing: He’s keeping an ownership interest.
Lithwick: Zephyr, there’s been some internecine and arcane fighting between constitutional law professors about whether this clause even applies to the president, right?
Teachout: Yes. The argument has to do with the language used in the clause and whether it applies to the president and to elected officials.
But there is both contemporary evidence from the Constitutional Convention and subsequent evidence that presidents and elected officials assumed it applied to them. Seth Barrett Tillman and I were debating this question three years ago.
Sometimes things seem arcane, so unimportant, that they’re fighting over how many angels can dance on the head of a pin. But the reason this hasn’t been litigated isn’t because it’s so unimportant. It’s because it’s so important.
The reason this hasn’t been litigated is because no president has even thought to come close to violating this foreign bribery provision. It’s not because it’s irrelevant, it’s because it’s so fundamental—President Van Buren called it a fundamental law of the republic—that the idea of even coming close to violating it hasn’t come up.
Some of the questions you’re asking about—where are the lines?—haven’t come up. Not because it’s trivial, but because it’s so basic that any self-respecting president has stayed miles away.
Lithwick: They do that by divesting, right?
Teachout: Yes. By liquidating.
But I want to give some examples from the 19th Century, just to give you a sense of how seriously this has been taken. President Martin Van Buren was offered horses, pearls, shawls, and a sword by the Imam of Muscat in 1840. You’d think the nice thing to do when you’re offered pearls and a sword is just to say “thank you.”
Lithwick: That’s what I do.
Teachout: Right. But instead he wrote a letter saying that he was forbidden from taking the presents for his own use, and he needed to check with Congress first.
So, he got a joint resolution of Congress authorizing him to get rid of the presents, and then he gave the proceeds to the Departments of State and Treasury. Again, Van Buren regarded this as a fundamental law of our republic, that we don’t just take money from foreign powers.
Another example. President Tyler was given just two horses and he submitted them to Congress, which then gave him the authority to sell them and give the money to Treasury.
Lithwick: Zephyr, you used the word impeachment. That’s the only cure here, right? If the president doesn’t divest, there isn’t some other fix. Congress either approves the gifts or impeaches?
Teachout: Well, that’s the first fix. Or that’s Congress’s obligation. I will tell you that I and others are also looking at other ways to address this. As you know very well, the answer in a legal question is uncertain until we go to the courts.
Here we have both a congressional and a presidential obligation, a clause that hasn’t been tested. I wouldn’t say that we know right now that the only answer is impeachment. I think that we as lawyers and citizens have an obligation, because this is such a fundamental violation, to look at other legal remedies as well.