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Document Type

Note

Publication Date

Summer 8-1-2019

Publication Citation

26 Indiana J. Global Legal Studies 717 (2019)

Abstract

President Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president's international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could "sway" or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these "entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic." CREW argued that President Trump violated the Emoluments Clause because the clause "cover[s] anything of value, monetary or nonmonetary."

In defense of the president, the Department of Justice (DOJ) contended that the president had not received illegal emoluments because an Emoluments Clause violation occurs only when the president receives compensation or gifts from a foreign country because of his official duty as president.

Neither of these emoluments definitions gets at the core of an Emoluments Clause violation. The Emoluments Clause, intended to prevent negative foreign influence in a globalizing world, acts as a builtin protection. It was created by the Framers to avoid the negative impact that foreign wealth could have on the U.S. government. This article argues that while foreign corruption in the form of payments to the president might be exactly what the Framers originally intended to avoid, President Trump is not violating the Emoluments Clause; President Trump's interests both domestically and globally that increase his wealth are not a violation of the clause. This article argues that because the world has become more globalized, any Emoluments Clause violation should occur only if there is a real possibility that the president will actually be influenced and engage in political action based on the potential for financial windfall. Thus, would a reasonable president in this situation actually be influenced to act in favor of foreign powers?

Part II of this article explains the CREW case and the competing definitions of emoluments. Part III addresses the functionalist and formalist approaches to constitutional interpretation and ultimately advocates for a functional approach to the Foreign Emoluments Clause.' Part IV examines the clause's text and emoluments' meaning in a global world. Part V explores the Foreign Emoluments Clause's original intent. Part VI discusses the Supreme Court's interpretation of the clause. Part VII discusses past practices regarding the executive branch's interpretation. Finally, Part VIII discusses the clause's future implications and possible remedies.

Available for download on Saturday, August 01, 2020

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