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The Domestic Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump

READ THE DOMESTIC EMOLUMENTS CLAUSE

Donald J. Trump’s decision to assume the presidency without separating from his businesses has undermined vital protections in our Constitution meant to ensure that the President does not put his personal interests above the interests of the nation and subvert our constitutional system. Among those critical protections is the Domestic Emoluments Clause, which bars the President from receiving benefits other than his compensation from the federal, state, or local governments.

When the Founders gathered to draft our Constitution, they were deeply concerned about corruption. Indeed, they believed that corruption and self-dealing posed an existential threat to the new national project. In response, they adopted two prohibitions on the receipt of “emoluments”—benefits, advantages, or profit—by officials of the federal government.

The Foreign Emoluments Clause, which bars federal officials from accepting benefits from foreign states without the consent of Congress, was adopted to limit foreign powers from meddling in the nation’s affairs. But the Framers realized that the threat of corruption was not exclusively external. They foresaw the dangers likely to arise from jealousy and rivalry among the American states, which were each being asked to yield their sovereignty to a new and more powerful national government. The Founders’ hard-won victories against the armies and influence of King George III taught them to fear the corrupting influence of patronage and the co-mingling of profit and power in the same office. They worried that a powerful chief executive would be tempted to feather his own nest, and that elements within the state and federal governments would capitalize on that temptation by offering him rewards to curry favor—undermining the careful balance of power in the new Constitution.

To protect the nation’s highest office from temptations and divided loyalty of this sort, the Framers adopted the Domestic Emoluments Clause, which provides that the President “shall not receive” any emolument, other than his fixed compensation, from “the United States, or any of them.”

That prohibition is as important today as ever. Were they permitted to do so, the states would have ample reason to bestow financial rewards on the President, who has great leverage over them through his influence on legislation, agency regulations, enforcement against particular industries, federal transfers, disaster declarations, administrative waivers, and more. The Domestic Emoluments Clause, however, “prohibit[s] individual states from greasing a president’s palm.”

Public reports suggest that President Trump may already be receiving emoluments in violation of this Clause, and he almost certainly will receive such emoluments while President unless he divests from his businesses. His real-estate and entertainment empire was built on government subsidies and tax breaks—nearly a billion dollars in New York alone—which his businesses continue to receive and seek to expand. And the federal government may be providing the President significant financial benefits through leases of, and expenditures at, his properties around the country. Regulatory actions by the federal government may also benefit Trump’s businesses, and thus Trump himself, in countless ways.

In a recent Brookings white paper, several legal scholars took an in-depth look at the Foreign Emoluments Clause and the constitutional violations that result from President Trump’s continuing acceptance of benefits from foreign powers. This white paper takes a similar look at the Domestic Emoluments Clause, discussing the text and history of the Clause, how it should be interpreted, and what it means in the context of President Trump’s vast business holdings.

Based on this examination, we conclude that President Trump is likely violating one of the Constitution’s most important provisions—a safeguard designed to prevent corruption and self-dealing in our highest office. And that should not be allowed to continue.