NPR's Planet Money, President Trump, and the Foreign Emoluments Clause

Noel King & Robert Smith, NPR Podcast #758, Can Trump Take the Money, NPR: Planet Money (Mar. 10, 2017), http://tinyurl.com/zg6cgte.

Noel King: Presidents and other elected officials have been so paranoid that they might seem to be in violation of [the Foreign Emoluments Clause] that they do everything they can to avoid it. In fact, in the handful of times it does come up it sounds ridiculous.

…

Noel King: Or if Presidents or other U.S. officials do accept gifts, they do what the [Foreign Emoluments] [C]lause says they got to do, they ask Congress for permission.

Dear Noel,

I listened to your full podcast. In fact, I listened to it twice. And then I delayed two days before writing you.

In your podcast (at 10:20ff), you state that Presidents have done “everything they can to avoid” application of the Foreign Emoluments Clause “or … they ask Congress for permission [to keep the gift].”

I find your willingness to make this claim more than a little troubling. You interviewed me for well over an hour, and you and I discussed in detail President George Washington’s diplomatic gifts: gifts which he received, acknowledged, and kept, absent any request for congressional consent.

You say that Presidents have been paranoid. You say that Presidents have done everything to avoid application of the clause. But that is simply not true. President Washington did not do anything. Washington just kept the gifts, including, a full length framed portrait of Louis XVI, which remains on display to this day at his Mt Vernon estate. This was diplomatic gift sent to President Washington at the direction of the French government through the French ambassador. Your podcast is over 20 minutes long, and yet, you could not even find a few seconds to let your listeners know that presidential practice is not uniform and also that there are academics who disagree with the merits of the legal arguments which form the basis of CREW’s lawsuit against President Trump. That result is more than disappointing; it is an unfair result. It is unfair because there are two sides to this story, and you chose to present only one, and you did so after reaching out to me, after asking me for an interview, and after taking a good deal of my time.

Why is it reasonable for you to spend all your airtime considering Ambassador Franklin and President Martin Van Buren, but not President George Washington and Secretary Alexander Hamilton—except that you chose to present only evidence supporting only one point of view?

What happens if CREW’s lawsuit fails, and fails on the merits, unrelated to standing? What happens if the federal court disagrees with the positions you put forth in your podcast, e.g., your asserting that emoluments means profits (as opposed to alternative and more limited definitions suggested by other academics, e.g., Professors Grewal and Natelson), and, e.g., your asserting that the Foreign Emoluments Clause applies to the President? If that should happen, then your listeners might begin to wonder: Why should they listen to NPR?, Why should they donate to public radio?, and, finally, Why should public radio receive taxpayer funded subsidies?—if public radio is determined to present only one side of issues that quite clearly have two sides (as even The NY Times has managed to acknowledge and report on multiple occasions). Now you might say that such a result, as I suggest here, i.e., CREW’s losing on the merits, would be wholly unexpected. But lately, unexpected things have been happening with some unexpected regularity: e.g., Brexit and the election of President Trump. Perhaps that is something you might want to consider when you next consider exercising editorial discretion to report only one side of an issue with two sides.

Seth

Citation: Seth Barrett Tillman, NPR’s Planet Money, President Trump, and the Foreign Emoluments Clause, New Reform Club (Mar. 12, 2017). [here]