by Prof. Jed Shugerman (Fordham Law School)
For background: The “foreign emoluments” clause of the Constitution states, “[N]o 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.” Art. I, Sec. 9, cl. 8. The “domestic emoluments” clause states: The President “shall not receive … any other Emolument from the United States, or any of them [any state].” I have written before about how President Trump is receiving both foreign and state emoluments. I am working with Mikhail, Jack Rakove, and Gautham Rao on an historians’ amicus brief on the legal meaning and context of the word “emoluments” in the eighteenth century.
Trump’s lawyers have argued in a white paper that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.” They suggest a narrow reading excluding the payments to Trump’s businesses for market transactions. I have argued that such market transactions should be considered “office-related,” but Mikhail’s research shows that emoluments are not limited to “office related payments.” In Blackstone’s Commentaries, the primary usage of the term included private benefits and advantages. As most judges and legal scholars probably know, Blackstone was one of the most important legal sources for the Founding generation. Founding-era Americans cited Blackstone far more than any other English or American legal scholar. Mikhail also adds a poignant reference to emoluments by the executor of Blackstone’s will, using “emoluments” in reference to the benefits from Blackstone’s estate.
I excerpt Mikhail’s post on the Balkinization blog summarizing his findings:
“Blackstone does not support such a narrow reading [by Trump’s lawyers]. … The majority of Blackstone’s usages of “emolument” involve benefits other than government salaries or perquisites. They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.