Listen to this story on “Retropod”:
Today, 233 years later, the same rule that bound Franklin threatens to ensnare President Trump. He’s facing multiple lawsuits alleging that foreign governments’ payments to his businesses are the modern version of Louis XVI’s gold boxes.
On Friday, a federal judge allowed a lawsuit — filed by 200 congressional Democrats — to move forward against Trump, alleging that he has violated the emoluments clause of the Constitution by doing business with foreign embassies and visiting foreign officials at Trump International Hotel. The hotel, which Trump still owns, is located just blocks from the White House.
“The Clause requires the President to ask Congress before accepting a prohibited foreign emolument,” Judge Emmet G. Sullivan wrote. If he failed to do so, the judge said in his ruling, then “the President is accepting prohibited foreign emoluments without asking and without receiving a favorable reply from Congress.”
In July, a federal judge in Maryland allowed another lawsuit — brought by the attorneys general of Maryland and the District — to go ahead, rejecting an effort by the president to have the case dismissed.
The attorneys general also contend the Trump Organization’s business dealings with foreign governments violate the foreign emoluments clause. The Trump Organization and the Justice Department argue the clause is aimed at preventing officials from taking bribes, not from running a business.
Until Trump’s election, few Americans were familiar with the term “emolument.” But the Founding Fathers saw the foreign emoluments clause as a key defense against other nations corrupting their new government. Part of the Constitution’s Article 1, Section 9, it reads, “No Person holding any Office of Profit or Trust under [the United States], 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.” The law, which guards against conflicts of interest and potential bribes, was invoked often in early American history.
The ban dates back to America’s first constitution, the Articles of Confederation. (Its inspiration was a 1651 Dutch requirement that foreign ministers reject diplomatic gifts.) The delegates at the 1787 Constitutional Convention included the ban in the new Constitution after Charles Pinckney of South Carolina “urged the necessity of preserving foreign ministers and other officers of the U.S. independent of external influence.”
At Virginia’s 1788 convention to ratify the Constitution, framer Edmund Randolph cited foreign temptations and Franklin’s dilemma as reasons for the clause. “A box was presented to our ambassador by the king of our allies,” Randolph told the delegates. “It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”
When another founder, George Mason, warned that “the great powers of Europe” might corrupt the president the way Russia had corrupted Poland, Randolph had a ready answer. “There is another provision against the danger … of the president receiving emoluments from foreign powers,” Randolph declared. “If discovered, he may be impeached.”
Because of the foreign emoluments clause, presidents including Andrew Jackson and Abraham Lincoln turned to Congress for instructions when foreign governments sent them gifts. Congress denied Jackson’s 1830 request to keep a gold medal from Colombian President Simón Bolívar. Lincoln alerted Congress after King Mongkut of Siam sent him a sword, two elephant tusks, and pictures of the king and his daughter. In 1862, Congress ordered Lincoln to deposit the gifts with the Interior Department.
Martin Van Buren, the nation’s eighth president, dealt with the 1800s’ largest, liveliest emoluments-clause dilemma.
In summer 1839, at the American Consulate in Tangier, trumpets announced the arrival of a procession of soldiers, sent by Abd ar-Rahman, the sultan of Morocco. The soldiers came bearing gifts: an “enormous, magnificent” lion and lioness.
The harried American consul, Thomas N. Carr, tried to refuse the lions, protesting that he — and the president — were barred by law from accepting them. The sultan’s emissary did not take no for an answer. “It will cost my head if I disobey,” the emissary said, according to Carr’s beleaguered letter to the secretary of state. “I shall leave them in the street.” Stuck, Carr put the lions up in a room in the consulate and wrote home, saying he would “anxiously await instructions.”
While the lions paced in the consulate, in spring 1840, the ship Sultanee sailed into New York City, bearing presents for Van Buren from Seyyid Said, the sultan of Oman: two Arabian horses, a Persian rug, some cashmere shawls, pearls and a sword. Apologetically, Van Buren wrote to the sultan (also known as the imam of Muscat) that “a fundamental law of the Republic … forbids its servants from accepting presents from foreign States or princes.” The ship’s captain insisted that the gifts should go to the U.S. government instead.
“I deem it my duty to lay the proposition before Congress,” Van Buren wrote to the Senate, “for such disposition as they may think fit to make of it.”
John Quincy Adams, the former president turned congressman, protested that Congress should refuse to consent to the gifts. “The president should receive no presents from any foreign power,” Adams argued on the House floor in June 1840. Despite Adams’ opposition, Congress authorized Van Buren to accept and sell the gifts from both sultans. The lions, shipped from Morocco to Pennsylvania, were auctioned off in Philadelphia’s Navy Yard in August 1840 for $375. The pearls, which weren’t sold, are in the Smithsonian’s National Museum of Natural History.
Today, federal law prohibits U.S. government employees, including the president, from accepting gifts worth more than $390 from foreign officials. Justice Department opinions warn that the foreign emoluments clause prohibits most federal employees from earning second incomes from foreign governments.
Before President Barack Obama accepted the Nobel Peace Prize in 2009, he got clearance from Justice Department lawyers who concluded that it wouldn’t violate the emoluments clause. (The Norwegian parliament appoints the nonprofit Nobel Committee, but Justice lawyers found that Norway’s government has “no meaningful role” in funding the prize or choosing its recipients. Obama gave the prize’s $1.4 million award to charity.)
Can federal officials, including the president, do business with foreign governments? The three lawsuits against Trump argue that the emoluments clause prohibits that, too. The case filed by Maryland and the District of Columbia has proceeded the furthest so far. Lawyers debated 18th-century dictionary definitions of “emolument” in court in Greenbelt in June. Trump’s lawyers argued for definitions that refer to profit from employment, while Maryland and D.C.’s lawyers argued that the more prevalent definition in the late 1700s included any profit or advantage.
In court, Trump’s lawyers also brought up a 225-year-old land deal struck by George Washington. In 1793, while Washington was president, he bought four plots of land in the District of Columbia from the federal government, in a land sale conducted by the D.C. commissioners, his appointees. “I had no desire … to stand on a different footing from every other purchaser,” Washington wrote to them.
Trump’s lawyers argued that Washington’s land deal is relevant to understanding the constitutional definition of an emolument. There’s also a domestic emoluments clause in the Constitution, which says that the president can’t receive “any other emolument” besides his salary from the U.S. or state governments. No one in 1793 treated Washington’s land deal as an emolument, Trump’s lawyers argue. So, they say, rent from a Chinese state-owned bank at Trump Tower isn’t an emolument either, nor are foreign diplomats’ bookings at the Trump International Hotel. (Still, just in case, the Trump Organization donated $151,000 to the U.S. Treasury in March, for unidentified “profits from foreign government patronage at our hotels and similar business” in 2017.)
But Washington’s example can go both ways. The first president often used the term “private emolument” in his letters, to mean personal profit. In April 1776, as the American commander in the Revolutionary War, Washington issued a proclamation warning that colonial merchants who furnished British warships with “supplies of provision” would be treated as enemies. In doing so, Washington evoked the same fears of divided loyalties and private gain that would soon give rise to the Constitution’s emoluments ban. “Sundry base and wicked persons,” Washington called the merchants, “preferring their own, present private emolument to their country’s weal.”
Erick Trickey is a Boston-based freelance writer who teaches magazine journalism at Boston University.