Is the Emoluments Clause Limited to Gifts?

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Copyright 2017 Dan Cofran

Soon we’ll be hearing more about impeachment using the Constitution’s Emoluments Clause, based on a global real estate empire generating profits, license fees, other payments and loans from foreign governments and their alter ego corporations, common, for example, in Russia and China. At least two lawsuits have been filed so far.

There is a degree of needless uncertainty here because the campaign promise to release federal income tax turns “after the election” has been repudiated.  Tax returns are a valuable starting point for unraveling complicated business interests.

The Law. The U. S. Constitution prohibits any federal office holder, including the president, members of Congress, judges, etc., from receiving compensation, gifts or titles from any foreign government. Art. I, Sec. 9, cl. 8, states:

“No Title of Nobility shall be granted by the United States: And no 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.”

The nation’s founders were concerned about the leaders of our newborn nation being improperly influenced by gifts or payments of any kind, bribes or legitimate, from wealthy foreign rulers, France and England in particular. For example, there was a lot of hub-bub at the time about King Louis XVI of France giving a diamond-encrusted snuff-box to Ben Franklin (already a total Francophile).

Some claim, however, that the Emoluments Clause applies only to “gifts,” like Franklin’s snuff-box, and not compensation. This is not correct. It applies to business income.

There are no court decisions on point. But this is plain when applying basic rules of statutory construction to the phrase “any present, Emolument, Office, or Title, of any kind whatever.”

First, words in statutes and constitutions are construed according to their ordinary, everyday meaning unless defined otherwise in the statute or constitutional provision.

The Merriam Webster dictionary defines “emoluments” as “the returns arising from office or employment usually in the form of compensation or perquisites.” This seems pretty clear. Plus, this is amplified by the ending phrase “of any kind whatever.”

Second, if two different words, in this case, “present” and “emolument,” are used together in the same statute or constitutional provision, they are presumed to mean two different things. Drafters don’t intend to be redundant. The Emoluments Clause specifically refers to both. They are different. An “emolument” is not a “present” or “gift.”

Third, how is the word used elsewhere in the document? We’re in luck! “Emolument” is used two other constitutional provisions, both regarding compensation.

Art. II, Sec. 1, cl. 7. “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.” You get $400,000 and a $50,000 expense account a year. That’s it.

Art. I, Sec. 6. “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . . . .” If Congress increases ambassador salaries, a member of that Congress can’t then resign from the Congress to be Ambassador to Monaco.

Fourth, what is the word’s historical origin? “Emoluments” is a Middle English word coming from the Latin term “emolumentum,” meaning according to one dictionary, “profit, gain.” This is “believed to have referred to payments made to millers for grinding corn — emolere means ‘grind out.’ Today, perhaps coincidentally, people refer to work as ‘the grind.’” So, an emolument is the two chickens you gave your miller to grind your corn, not the crock of meade you gave him as a gift upon the birth of his first male child. (Sorry, ladies, but it was that grim.)

CAUTION, however. Read the clause again. The Congress, in this case a Republican House and Senate, can waive the emoluments prohibition. Do they dare? Let’s have another crock of meade.

© 2017 – 2021, Dan Cofran. All rights reserved.

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