The Lawyers Who Mistook a President for Their Client

Kathleen Clark

Professor of Law, Washington University School of Law

The U.S. Department of Justice has a long history of interpreting the Constitution’s Foreign Emoluments Clause (the “Clause”) to protect the government against foreign influences. Over the course of a century and a half, the Department has issued more than fifty opinions interpreting the Clause to prohibit federal officials from accepting any benefit from foreign governments, even if the benefit is small in size, is part of an arms-length transaction, is funneled through an intermediary, or if the official’s government responsibilities don’t affect the foreign government. Consistent with both the language and purpose of the Clause, the Department has been vigilant in safeguarding our Republic from potentially corrupt foreign government influence by preventing foreign governments from currying favor with federal officials.

That strong and consistent record changed on June 9, 2017, when the Department responded to the first of three lawsuits (the “Emoluments Litigation”), all of which alleged that President Donald Trump violated the Foreign Emoluments Clause by accepting payments from foreign governments through his commercial establishments, including his Washington, D.C. hotel. In its memorandum of law and later pleadings, the Department veered away from its long track record of vigilance on behalf of the Republic. Instead, the Department adopted the legal arguments put forward by Donald Trump’s personal lawyers, who were pushing for a narrow interpretation of the Clause in order to advance Trump’s private financial interests. That narrow interpretation of the Clause would permit the President—and all federal officials—to accept unlimited amounts of money from foreign governments if the money comes through commercial transactions with an entity owned by the federal official. In the Emoluments Litigation, the Department has chosen to protect the personal financial interests of Donald Trump instead of the institutional interests of the United States. Department lawyers have mistaken this President for their actual client, the United States.

Other articles and commentaries about the Emoluments Litigation have focused on competing definitions of “emolument,” but this is the first article to take a comprehensive look at the Clause as interpreted by the Department in more than fifty opinions over 150 years. The consistent historical record stands in sharp contrast to the position that the Department has taken in the Emoluments Litigation: Advocating for Donald Trump’s personal enrichment. [View Full Article]