Emolumental News

“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 prohibition against officers receiving a present or emolument is essentially an antibribery rule to prevent influence by a foreign power. At the Virginia Ratifying Convention, Edmund Randolph, a delegate to the Constitutional Convention, identified the Clause as a key “provision against the danger … of the president receiving emoluments from foreign powers.”

The language of the Emoluments Clause is both sweeping and unqualified. See 49 Comp. Gen. 819, 821 (1970) (the “drafters [of the Clause] intended the prohibition to have the broadest possible scope and applicability”). It prohibits those holding offices of profit or trust under the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from “any . . . foreign State” unless Congress consents. U.S. Const, art. I, § 9, cl. 8 (emphasis added). . . . The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause.

The word “emolument” has a broad meaning. At the time of the Founding, it meant “profit,” “benefit,” or “advantage” of any kind. Because of the “sweeping and unqualified” nature of the constitutional prohibition, and in light of the more sophisticated understanding of conflicts of interest that developed after the Richard Nixon presidency, most modern presidents have chosen to eliminate any risk of conflict of interest that may arise by choosing to vest their assets into a blind trust. As the Office of Legal Counsel has advised, the Constitution is violated when the holder of an “Office of Profit or Trust”, like the President, receives money from a partnership or similar entity in which he has a stake, and the amount he receives is “a function of the amount paid to the [entity] by the foreign government.”

This is because such a setup would allow the entity to “in effect be a conduit for that government,” and so the government official would be exposed to possible “undue influence and corruption by [the] foreign government.” The Department of Defense has expressly held that “this same rationale applies to distributions from limited liability corporations.”