Come for the politics, stay for the snark.

Make the republican party small enough to drown in a bathtub.

Accountability, motherfuckers.

The willow is too close to the house.

The next time the wall street journal editorial board speaks the truth will be the first.

It’s always darkest before the other shoe drops.

I wonder if trump will be tried as an adult.

Happy indictment week to all who celebrate!

He really is that stupid.

If you are still in the GOP, you are an extremist.

Sitting here in limbo waiting for the dice to roll

Why is it so hard for them to condemn hate?

You cannot shame the shameless.

… riddled with inexplicable and elementary errors of law and fact

JFC, are there no editors left at that goddamn rag?

The GOP couldn’t organize an orgy in a whorehouse with a fist full of 50s.

T R E 4 5 O N

Damn right I heard that as a threat.

Red lights blinking on democracy’s dashboard

We are builders in a constant struggle with destroyers. let’s win this.

Let’s delete this post and never speak of this again.

“woke” is the new caravan.

Thanks to your bullshit, we are now under siege.

I’m sure you banged some questionable people yourself.

It’s the corruption, stupid.

You are here: Home / Politics / Activist Judges! / Emoluments question

Emoluments question

by | 57 Comments

This post is in: , , , ,

I am not a lawyer. But I have a legal question regarding the emoluments clause that could be the start of a constitutional confrontation. Lawyers in the audience, please tell me where I am going wrong in the following scenario?

Let us assume a foreign government official without diplomatic immunity from Fredonia stays at the Trump Hotel in Washington D.C. tonight. The Trump Hotel is still owned by the President. He had not given a credit card to hold the room. The foreign official is conscientious and checks out tomorrow morning. He receives a charge for the room. He refuses to pay for the room as it would be an emolument. He offers to place the money into escrow until the dispute can be resolved.

At that point the hotel management has two choices. Eat the loss to not embarrass the boss or initiate civil or criminal action to get the room fee? If they choose the second option, the entire question of what is an emolument has to be answered. Is that correct?

What am I missing here? And if I am not missing anything big, how do we recruit a good test case?

Reader Interactions

57Comments

  1. 1.

    eric

    if it eats the loss, wouldnt that be sort of a gift from the US president and potentially a bribe in violation of statute?

  2. 2.

    Richard Mayhew

    @eric: I was thinking that the word would get out that the Trump hotels would eat the losses to avoid problems for the boss and become an adverse selection magnet for foreign officials in the US but you’re thinking is better

  3. 3.

    SiubhanDuinne

    @eric:

    So if Richard’s scenario happens, the President is in violation of the Emoluments Clause, and if your scenario happens, the President illegally profits from a bribe, but either way the President is in violation of the law. Sounds about right.

    Lock him up! Lock him up!

  4. 4.

    aimai

    Trick question? Answer: nothing will be done. It doesn’t matter what is or is not a violation of any clause of the constitution or the law under Trump.

  5. 5.

    Seth

    Well, the whole point of staying at the Trump hotel is to curry his favor. What foreign official wants to be the the bad side of a petty, vindictive President?

  6. 6.

    Schlemazel

    The hotel will do whatever the boss says they should do. If the room is part of the quid pro quo nothing is said or done. Nothing is going to come from any of this & it is a waste of time to discuss it. IF the GOP decides to dump the asshole these questions will be answered but it won’t matter then either as the train will be on the track. till then you might just as well ask how many angles can dance on the head of a pin.

  10. 10.

    rikyrah

    A presidential giant exits the stage
    01/20/17 04:30 PM
    By Steve Benen
    Presidents are often judged by a historical shorthand that highlights their most historic achievements. Abraham Lincoln, for example, won the Civil War and signed the Emancipation Proclamation, Franklin Roosvelet created the New Deal, rescued the country from the Great Depression, created Social Security, and won World War II.

    These are the kinds of successes that put a president in the pantheon of American leaders of legendary consequence.

    THE RACHEL MADDOW SHOW, 1/19/17, 11:13 PM ET
    Barack Obama departs with legacy of accomplishment

    As President Obama becomes former President Obama, the debate can now begin in earnest about his tenure. When that historical shorthand is applied to his terms, what will include? How will it compare to those who came before him?

    I’m reminded of a piece Paul Krugman wrote in the fall of 2014, a month before the GOP took complete control of Congress, when Obama’s standing wasn’t nearly as strong as it is now.

  12. 12.

    David Hunt

    The hotel initiates whatever action it normally takes to deal with deadbeat guests. Maybe it gets Trump some bad press, but Trump’s ownership of the Hotel is already a well known nakedly unconstitutional thing he’s doing. As to what gets done, it’s nothing. The ultimate enforcement against Presidents doing nakedly unconstitutional things is Congress and their power of impeachment and no GOP Congress is going to impeach Donald Trump or any other President who has and “R” after his name.

  13. 13.

    rikyrah

    In his inaugural address, Trump vows to end ‘American carnage’
    01/20/17 01:42 PM—UPDATED 01/20/17 01:46 PM
    By Steve Benen
    The story of Donald Trump’s political trajectory is one of a series of “pivots” that were predicted but never seen.

    After Trump’s belligerent campaign kickoff in June 2015, many observers said he’d soon pivot towards a more responsible campaign message in order to extend his appeal to more Republican constituencies. That didn’t happen.

    After he secured the Republican Party’s presidential nomination, many assumed Trump would pivot away from his primary persona and become a general-election candidate with a message that resonated nationally. That didn’t happen, either.

    After Trump won the election, much of the country expected him to pivot from campaign mode to governing mode as he prepared for the awesome responsibilities of the American presidency. That didn’t happen, either.

    After he actually became president this afternoon, Trump was supposed to pivot, embracing the fact that he now represents the nation and its people, and recognizing that the time for deliberate divisiveness has passed.

    ………………………..

    There will be no pivot. The Donald J. Trump we saw riding down an escalator in New York 19 months ago is the same Donald J. Trump who’s on his way to the Oval Office. The nuances of his personality don’t really exist. What we saw is what we have and we’ll get.

    The result was an inaugural address intended for Trump’s base – and no one else. Those waiting for an uplifting message were left wanting. The expected olive branches were set on fire.

    The speech was, to be sure, deeply and unapologetically populist, which was only surprising because I thought everyone knew better by now. Sure, Trump exploited populist anger throughout his campaign, but during the transition period, the new president appointed billionaires and Washington insiders to help lead his administration, started selling access to megadonors, and moved forward with an agenda built on tax cuts for the wealthy elite.

  16. 16.

    carolus

    Trump doesn’t own the hotel, the US Govt. does. Trump developed the property and leases it from the US Govt.

    The GSA is somewhat fuzzy on the issue. The lease stipulates quite clearly no elected Govt official can benefit from any part of the lease. But GSA has said they have “no position” on Trump’s lease.

    Lawrence Tribe and several other ethics lawyers make a strong argument Trump’s DC Hotel is a violation of the Emoluments clause, however.

  18. 18.

    catclub

    Another thing I just heard ( where was THIS during the campaigns before the election) is that the lease to the Trump Hotel in DC is voided/cancelled/invalid if it is held by any Government office holder.

  21. 21.

    randy khan

    Problem number one with this approach is that there is no possible way that the hotel would take a reservation without a credit card to guarantee it (or a big deposit check). If there’s one thing that people in the hotel business know, it’s to make sure you can be paid in advance.

  22. 22.

    Seth Owen

    I haven’t seen it remarked upon yet, but the inaugural speech included the word ‘decree.’ Has that word appeared in any of the previous ones? It’s a very unrepublican (small r) word.

  23. 23.

    Obdurodon

    What would actually happen is neither of the above. The Bully In Chief would let it be known, to other people within that foreign government, that very bad things might happen to their country or its other citizens in the US if the bill’s not paid. All out of public view/record of course.

  24. 24.

    J R in WV

    Eric, Richard, I like the way you think. The GAO GSA should have delivered a repo statement to Trump Enterprises at the White House when he arrived there. Or just gone to the building, ordered everyone out, shut it down, and changed the locks

    I think (from what I have recently read) that the lease agreement has specific requirements that were broken when Don was sworn in. He can’t lease that facility from himself.

    But of course, those who point out that the sole remedy against a rabid President is the Congress via impeachment, or the 25th amendment, the VP, and a majority of the cabinet, but that then takes an ever larger margin in the House to sustain the removal of the president’s powers than mere impeachment.

    WASF

    ETA to fix wrong federal agency… so many 3 letter agencies!

  26. 26.

    Jeffro

    So…how’s everyone’s “Day of Patriotism” going? LOL what a fucking moron.

    And hey, speaking of morons, I went over to Foxnews.com where I guess they stream the TV channel at the top in addition to having “news” stories…holy cow are they in the bubble. I mean it was OFFENSIVE, the kind of shit they were talking. Excusing the “carnage” line – as if American cities are just fucking going up in flames. Calling Trump’s lines copying the Batman villain Bane as a nod to ‘populist tastes’?!? There’s really nothing they won’t excuse in the service of Mammon, er, I mean, Trump.

  27. 27.

    NCSteve

    @Seth: A question that raises a bit of a standing issue, even aside form the Foreign Sovereign Immunities Act defense if they sue him . . .

    But right now I’m still trying to figure out if there’s ever been a case that made its way up to SCOTUS from a municipal small claims court.

  28. 28.

    Another Scott

    @carolus: Indeed.

    USA Today:

    The lease reads: “No member or delegate to Congress, or elected official of the Government of the United States or the Government of the District of Columbia, shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom; provided, however, that this provision shall not be construed as extending to any Person who may be a shareholder or other beneficial owner of any publicly held corporation or other entity, if this Lease is for the general benefit of such corporation or other entity.”

    “The Deputy Commissioner confirmed repeatedly during the briefing that GSA reads this provision as we do, which is a categorical ban on the President of the United States or any other elected official having any financial interest in this lease, or taking any financial benefit from it. He explained that this provision is a standard clause that is included in many GSA leases create a ‘level playing field’ and protect the interest of the American people,” says the letter to GSA Administrator Denise Turner Roth.

    Rep. Elijah Cummings of Maryland, ranking member of the Oversight and Government Reform Committee; Rep. Andre Carson of Indiana, ranking member of the Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings and Emergency Management; Rep. Gerry Connolly of Virginia, ranking member of the Oversight and Government Reform Subcommittee on Government Operations; and Peter DeFazio of Oregon, ranking member of the Transportation and Infrastructure Committee, signed the letter.

    But GSA issued a statement Wednesday that seemed to push back against the Democrats’ letter, at least until more information is provided.

    “GSA does not have a position that the lease provision requires the President-elect to divest of his financial interests. We can make no definitive statement at this time about what would constitute a breach of the agreement, and to do so now would be premature. In fact, no determination regarding the Old Post Office can be completed until the full circumstances surrounding the President-elect’s business arrangements have been finalized and he has assumed office,” the statement reads. “GSA is committed to responsibly administering all of the leases to which it is a party.

    IANAL, but the lease language seems clear-cut. One could read the GSA statement as them wanting to get all their ducks in a row and make sure every “i is dotted and t is crossed” before making their ruling. They undoubtedly know that Donnie would sue them if he could, so they want to make the case iron-clad. That would be the smart thing to do, anyway.

    So, independent of the Emoluments Clause, he’s clearly violating the lease.

    With the Emoluments Clause, it would seem clear that he couldn’t (actually) own a hotel and have representatives of foreign governments stay there for free (or pressure them to stay there and pay, either). He’s doing things for his personal benefit and not putting the interests of the USA first.

    And the bolded part shows that just having Uday and Qusay and Morticia run the place for him isn’t good enough, either.

    But, we’ll see.

    Cheers,
    Scott.

  29. 29.

    NCSteve

    Speaking of the new black, this morning, while I was putting on a black sweater, making plans to avoid the news and contemplating the renewed sense of nausea and horror that set in last night, I got texted by a friend. Who told me her plan for the day included avoiding the news and wearing black.

    Then I went to Starbucks and saw that about 60+% of the people there were wearing black. Went to lunch, again close to two thirds wearing black. Black, black and blue, black and gray. Lots of it. Everywhere.

    So how many people here today, unprompted by any Twitter or FB campaign, donned the color of mourning today, whether deliberately or because it matched their mood?

  30. 30.

    hilts

    @rikyrah:

    Trump IS the carnage.

    In First of Many, ACLU FOIA Request Seeks Information About the New President’s Conflicts of Interests:

    Bipartisan ethics experts have raised alarm bells about Trump’s many business interests across the globe. He’s reportedly in millions of dollars in debt to foreign countries or entities, including China. He faces mounds of civil lawsuits, with more on the way. His son-in-law will have a White House office, in potential violation of the nepotism laws.

    Indeed, some have even argued that upon taking the oath of office, the new president is already violating the Constitution — in particular, the now-famous Emoluments Clause. As a bipartisan quartet of ethics experts and lawyers wrote this week:

    “The emoluments clause forbids any ‘Person holding any Office of Profit or Trust under [the United States]’ from accepting any ‘any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State’ (unless Congress explicitly consents).

    By ’emolument,’ this provision means any benefit derived from dealing with a foreign government. It is well-settled that receipt of such emoluments is strictly prohibited for persons holding positions of trust with the U.S. government. A U.S. official need not also have an ‘office’ with a foreign government in order to receive an emolument from it.

    The Framers included this provision in the Constitution to guarantee that private entanglements with foreign states would not blur the loyalties of federal officials, above all the president. Yet that lesson seems lost on Trump, whose continued significant ownership stake in the Trump Organization forges an unbreakable bond between Trump and a global empire that will benefit or suffer in innumerable ways from its dealings with foreign governments. Trump’s actions in office will thus be haunted by the specter (and perhaps reality) of divided interests.”

    h/t https://www.aclu.org/blog/speak-freely/first-many-aclu-foia-request-seeks-information-about-new-presidents-conflicts

  31. 31.

    a hip hop artist from Idaho (fka Bella Q)

    @SWMBO: If I’m reading the numbers correctly it’s BHO 81.1M followers and POTUS Tangerine 10.1M. But he can improve!

  32. 32.

    Lavocat

    Answering this question specifically and precisely is far more difficult than you may think, as it involves other aspects and doctrines of law. However, I think Laurence Tribe’s analysis is best. His position is basically quite elegant: full divestiture or violation of the emoluments clause. He states that even a blind trust will not suffice.

    However, the harder test here concerns the doctrines of standing and justiciability. In other words, who can bring suit over a violation of the emoluments clause, and how can they prove they’ve suffered damages and be accorded the appropriate relief? Hell, what would “the appropriate relief” even be? We are moving through the Looking Glass in this area.

    However, even with full divestitutre, there are other, more arcane issues at play. This will be entertaining First Year law students for centuries to come, if there’s even a United States by then.

    With any luck, the emoluments clause WILL be litigated before the Supreme Court.

    I still maintain that Donny Boy is going to fuck up so badly as President that impeachment and removal will be all but unavoidable.

  33. 33.

    a hip hop artist from Idaho (fka Bella Q)

    @Lavocat: Considerations of standing and justiciability as applied to this question gives me a headache. But if it didn’t, I’d be tempted to chart applicability options in an essay. Emoulements violations are going to be very far down the list of concerns of the new regime I suspect. And some believe we’ll know how far down soon.

  34. 34.

    Immanentize

    @Schlemazel: OK, I have a question in a different direction — is Trump Hotel now subject to the Freedom from Information Act? I would like to test this.

    ETA Aren’t all Trump properties and businesses similarly implicated and isn’t EXXON as well?

  36. 36.

    rikyrah

    Obama Legacy: The True Impact Of Having Two Black Lawyers In The White House
    By Paula Edgar
    Jan, 20, 2017
    0
    I could never have imagined as a child that the leader of the free world and his wife would both be Black lawyers. Their presence in the White House reminded me of the responsibility we as lawyers have to use our legal training to become servant leaders.

    “I am asking you to believe. Not in my ability to bring about change — but in yours.” – President Barack Obama’s Farewell Address, January 10, 2017

    Everyone will have their individual take on the legacies of Barack and Michelle Obama. We know Barack Obama’s resume. He is America’s 44th President and our first Black President. Before becoming President he was a community organizer, a law Professor, and a Senator. His impact as our President stands alone, but for me, as a Black attorney and leader, his legacy is inextricable with that of his wife, Michelle.

    Michelle Obama’s legacy and impact as a mother, health and education advocate, lawyer, wife and advisor to the President is unparalleled. She is from the south side of Chicago, and like her husband, attended Harvard Law School and later worked at a top law firm. After private practice, her career went on to local government, nonprofit, community organizing and finally a position in healthcare administration. Mrs. Obama has been our most experienced and accomplished First Lady to date.

    ………………

    Together, the Obamas made the roles of the President and First Lady approachable and authentic. They opened the doors of the White House to all of us, but I could never have imagined as a child that the leader of the free world and his wife would both be Black lawyers. My most memorable exposure to a Black lawyer as a child was the role of Claire Huxtable in the Cosby Show. As an adult, I remember that having a Black actor portray the President on “24” was controversial.

  38. 38.

    Another Scott

    @Immanentize: Tillerson is taking a golden parachute from Exxon as soon as he’s confirmed.

    I have an opinion on the rest (of course he must (at minimum) set up a blind trust, but given his name is all over everything, that realistically wouldn’t be enough), but IANAL.

    Cheers,
    Scott.

  40. 40.

    Richard Mayhew

    @efgoldman: but let’s get them on the record that they are willing to sell their stated orginalism and claims of constitutional guardians out for a small tax cut… Make them own the shit gibbon

  41. 41.

    SiubhanDuinne

    @NCSteve:

    I am wearing black trousers (and black shoes and socks) and a sweater that’s such a dark charcoal grey that it might as well be black. Even a black elastic to hold back my hair :-)

    Got at least two text messages from far-off friends who told me, unprompted, that they were wearing black today.

    Mourning in America.

  42. 42.

    a hip hop artist from Idaho (fka Bella Q)

    @Immanentize: I’m not an expert though I have done some state response work. That said, it would seem that all the lease docs, including bids and responses, are subject to FOIA. I think I read somewhere that cooperation of a restoration architect was a big factor in awarding the development contract, and that when the promised one withdrew due to health, the next one they hired quit over design issues. Historic building restoration tends to draw an opinionated crowd of players.

  49. 49.

    hellslittlestangel

    Any foreign official who stays at a Trump property should just say they didn’t like the accommodation, and refuse to pay. If management squawks, the official should offer ten dollars, and say, if you don’t like it, sue me. Same thing anyone who does business with Trump should do.

  50. 50.

    Zelma

    All black. Personal decision. I may wear black for the next four years. And I don’t look that good in black.

  54. 54.

    trnc

    I am not a lawyer. But I have a legal question regarding the emoluments clause that could be the start of a constitutional confrontation.

    Not yet, but hey, maybe all of us who post on these blogs will have plenty of time to study law in prison in President Sex Offender’s America.

  56. 56.

    Ethan's Mom

    @a hip hop artist from Idaho (fka Bella Q): I’ve seen multiple reports on twitter of people discovering they are following @POTUS or @FLOTUS when they either unfollowed yesterday or had never followed the accounts at all. @POTUS is up to 14.5 million which is a pretty big jump in just a few hours.

  57. 57.

    Rat

    This hypo doesn’t get you where you want to go. If the hotel eats the loss, Trump’s not accepting a gift or otherwise profiting from a foreign state in any obvious way and, even if it were, the remedy is impeachment. As to the second option, the hotel, like any private party, can’t initiate criminal proceedings, period. It could initiate a civil action to collect, but the issue would be whether the hotel owed the money, and the emolument clause wouldn’t come into play because it would be irrelevant to the issue before the court (whether the hotel is owed money), so the judge would never have to decide the clause’s scope. And even if the trial judge did, and the Supreme Court affirmed years later, it wouldn’t matter because we would then only have, at best, a definitive ruling on the clause’s scope. That would provide a basis for impeachment, which already exists today but for the political desire to exercise it.

Comments are closed.