Justice Department narrows interpretation of emoluments clause

April 24, 2019 – The United States Justice Department has narrowed its interpretation of the foreign emoluments clause, allowing foreign countries to court President Donald Trump through patronizing his hotels, condos and golf courses and through granting him trademarks, suggests a new article by an ethics expert at Washington University in St. Louis.

The foreign emoluments clause is a provision of the U.S. Constitution that generally prohibits high-level federal officials from receiving any gift, payment or other thing of value from a foreign state or its rulers, officers or representatives.

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Recent court filings reveal that the Justice Department has changed its position on the clause, said Kathleen Clark, professor of law in the School of Law,  in her piece “The Lawyers Who Mistook a President for Their Client,” forthcoming in the Indiana Law Review.

“The U.S. Department of Justice has a long history of interpreting the constitution’s Foreign Emoluments Clause to protect the government against foreign influences,” she writes.

That strong and consistent record changed on June 9, 2017, she argues, when the department responded to the first of three lawsuits charging that Trump violated the foreign emoluments clause by accepting payments from foreign governments through his commercial establishments, including his Washington, D.C., hotel.

“In that and later pleadings, the Justice Department has veered away from its long track record of vigilance on behalf of the republic,” Clark writes. “Instead, the department adopted the legal arguments put forward by Trump’s personal lawyers, pushing for a narrow interpretation of the clause in order to advance Trump’s private financial interests.”

In the emoluments litigation, “the department has chosen to protect the personal financial interests of Donald Trump instead of the institutional interests of the United States,” she writes. “The U.S. Department of Justice has mistaken this president for its actual client, the United States.”

In the paper, Clark examines the department’s more than 150 year history of interpreting the emoluments clause, how the more narrow interpretation of the clause developed, and Justice Department and other federal government opinions on the clause.

“While there are past examples of the Justice Department changing its view on specific legal issues after a newly elected administration takes office, there is something unprecedented about this particular reversal,” she writes. “Past reversals have been based on changes in an administration’s policy preferences and ideological commitments.

“This change, on the other hand, was based not on ideology, but on the personal financial interests of this particular president. Never before have the immense litigation resources of the Justice Department been deployed to personally enrich a president. In essence, the Justice Department has abandoned its institutional client, the United States, and is now litigating to advance the personal financial interests of Donald J. Trump.”