‘Corruption crusader Donald Sherman: “If you give a bully your lunch money, they’re going to ask for more”,’ Financial Times (Nov. 2, 2026).
Patrick Jenkins wrote: “Trump’s commercially minded actions are still governed by the ... [F]oreign [E]moluments [C]lause[] in the [U.S.] [C]onstitution.”
I have been writing in academic articles and in amicus briefs since 2008 (well before Trump) that the Foreign Emoluments Clause’s “office ... under the United States”-language applies exclusively to federal appointed (or statutory) positions, and not to any elected federal positions—members of Congress, Vice President, and President.
My position is that the U.S. Constitution’s “office ... under the United States”-language was substantially borrowed by the Framers of the U.S. Constitution from then-prevailing British statutory drafting conventions. Such 18th century British (and formerly English) statutes frequently used “offices ... under the Crown”-language, and that latter language does not apply to elected or apex positions, but only to appointed or subordinate positions. There is a wealth of legal authority explaining the scope of “office under the Crown.”
The Supreme Court of the U.S. and the other federal courts have not conclusively resolved this issue: What is the scope of “Office ... under the United States” as used in the Foreign Emoluments Clause and in other constitutional provisions? During the first round of Foreign Emoluments Clause-related litigation against Trump—between 2017 and 2021—two federal trial (or district) courts took the position that such language did encompass the presidency. Both those decisions were subsequently vacated or reversed. In 2025, a state trial court in Colorado held that “office ... under the United States” as used in Section 3 of the Fourteenth Amendment did not extend to the presidency. The trial court’s decision was reversed by the Colorado Supreme Court, and then the U.S. Supreme Court reversed the Colorado Supreme Court. Thus, the state trial court’s decision on this point remains the only good law on the subject. That Colorado decision is persuasive, but not binding, precedent.
Donald Sherman and Citizens for Responsibility and Ethics in Washington (“CREW”) may and, in fact, have argued to the contrary. But the courts of the United States have yet to speak with clarity on this issue.
Seth
Seth Barrett Tillman, ‘Financial Times: Tillman’s Letter to the Editor,’ New Reform Club (Nov. 2, 2026, 5:37 AM), <https://reformclub.blogspot.com/2026/11/financial-times-tillmans-letter-to.html>;
