The Constitution’s Domestic
Emoluments Clause*** states:
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.[1]
The Constitution’s Foreign
Emoluments Clause states:
[N]o Person
holding any Office of Profit or Trust
under them [i.e., the United States], 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.[2]
In regard to the Domestic
Emoluments Clause, where the federal government or a state government engages
in a business transaction with a private commercial entity owned (in whole or
in significant part) or controlled (in whole or in significant part) by the President of the United States (in his
private capacity), but not with the President,
it is not clear that such a transaction falls under the aegis of the Domestic
Emoluments Clause. Indeed, no court of the United States (of which the Author
is aware) has had occasion to resolve this novel threshold question of pure
law. This issue must be resolved in any litigation seeking to assert that the
Domestic Emoluments Clause applies to such business transactions with the
President. As a question of pure law, this issue ought to be judicially
resolved prior to any court ordered discovery.
Much
the same can be said in regard to the Foreign Emoluments Clause. No court of
the United States (of which the Author is aware) has had occasion to determine
whether a foreign state owned or foreign state controlled commercial entity is
a “foreign state” for the purposes of the Foreign Emoluments Clause. This is a
novel threshold question of pure law which must be resolved in any litigation
seeking to assert that the Foreign Emoluments Clause applies to business
transactions between a constitutionally proscribed federal officeholder (i.e.,
an “officer … under the United States”) and a foreign state owned or foreign state
controlled commercial entity. As a question of pure law, this issue ought to be
judicially resolved prior to any court ordered discovery.
Similarly,
where a foreign state engages in a business transaction with a private commercial
entity owned (in whole or in significant part) or controlled (in whole or in
significant part) by a constitutionally proscribed federal officeholder (in his
private capacity), but not with the officeholder, it is not clear that such a
transaction falls under the aegis of the Foreign Emoluments Clause. Indeed, no
court of the United States (of which the Author is aware) has had occasion to
resolve this novel threshold question of pure law. This issue, too, must be
resolved in any litigation seeking to assert that the Foreign Emoluments Clause
applies to business transactions between private commercial entities owned or
controlled by a constitutionally proscribed federal officeholder and a foreign
state. And, here too, as a question of pure law, this issue ought to be judicially
resolved prior to any court ordered discovery.
Where
a transaction has a commercial entity on both sides, as opposed to an actual
foreign state and an actual constitutionally proscribed federal officeholder,
the policy concerns animating the Foreign Emoluments Clause must be much
attenuated.
Seth
Seth
Seth
Barrett Tillman, Novel Questions of Pure
Law and Discovery, The New Reform
Club (Mar. 27, 2017, 6:58 AM), http://tinyurl.com/lpjudfk.
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