Our problems remain epistemological.

Thursday, December 01, 2016

Congressional Research Service Issues Revised Guidance on the Foreign Emoluments Clause

In 2012, CRS's position was "The President and all federal officials are restricted by the Constitution, at Article I, Section 9, [C]lause 8 ...." Jack Maskell, CRS, R42662, Gifts to the President of the United States, 4 (Aug. 16, 2012), https://www.fas.org/sgp/crs/misc/R42662.pdf

In 2016, CRS has issued revised guidance (despite contrary Department of Justice/Office of Legal Counsel authority): the Foreign Emoluments Clause "might technically apply to the President...." Jack Maskell, CRS, Conflict of Interest and “Ethics” Provisions That May Apply to the President, 2 (Nov. 22, 2016) (emphasis added), http://tinyurl.com/joxwq2w.

This is a substantially revised position from an organization which (unlike DOJ/OLC) is not responsible to the President. Jack Maskell and CRS are to be commended for their courage, and for staying abreast of new research and new thinking, as opposed to accepting unsupported conclusory statements issued by the Office of Legal Counsel. 

The dam has burst. Those modern scholars and policy wonks who have stated without support that the Foreign Emoluments Clause applies to the President now must defend their position with actual arguments and evidence, as opposed to bluster and group think. 


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, How The Recounts Pose A Risk To Mike Pence, The New Reform Club (Nov. 28, 2016, 7:36 AM). [here


Unknown said...

Just to make a comment about the clause that contains the emolument wording below.

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.

This clause specifically refers to positions holding any office of profit or trust under Congress.

The president is not a position held under Congress.

tankdemon said...

Miller Smith, I think you are misreading that clause. The clause refers to persons holding office of profit or trust under the United States, (which was generally referred to in the plural at the time), not Congress (which would have been referred to with a singular pronoun.)

Anonymous said...

I fail to understand how the owner/director of a corporation (or LLC) who has work with a Foreign government is receiving a gift or emolument. Profit from a business is not the same thing as being employed by the government and is not a gift. If we read so broadly wouldn't Pres Obama be in violation each time a foreign government bought his book (this happened in 2008 so they could learn about the new president).

Unknown said...

Yes, I think the key is the clause bans all kinds of gifts, getting something for free. But would it ban a business deal, where a foreigner, or even a foreign gov, pays fair value for something, I dont think so. I suspect many of the founders had businesses where they traded with people from foreign nations, adn even sold stuff to foreign governments. Where it could get complicated for Trump is if some foreign gov offered Trump Inc some kind of special deal, like they offer $X in some kind of subsidy for Trump Inc to build a hotel somewhere, or some foreigner offered Trump free interest in some enterprise to use the trump name. In that case, would the subsidy be the kind of thing offered to any business to locate there, or could it be unfairly inflated to buy influence with Trump.

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