In the years before the Constitution was written, two of the most famous figures of the American Revolution were caught up in controversy over fears of undue foreign influence caused by their receipt of opulent gifts from European kings. One was a gold snuff box encrusted with 408 diamonds that King Louis XVI of France gave to Benjamin Franklin. The other was a horse, given to John Jay by the King of Spain. Both of these gifts were publicly reported to the new Confederation Congress, and despite vocal public objection, both men kept the gifts.
The controversies were still ripe in the minds of American leaders when they soon went to draft a new constitution. They worried that large and valuable gifts might inappropriately influence American officials in their dealings with foreign states—that a snuff box or a horse could psychologically warm a person to another country, distorting his ability to put America’s interests first. To prevent that distortion, the drafters made anti-corruption provisions a cornerstone of the new constitution. Indeed, if the frequency of their attention to a particular issue is a measure of how significant their concern was, then few issues were as alarming to them as corruption, which the original Constitution explicitly addresses in four separate instances—plus a fifth that was later added.
President Donald Trump’s instinct for self-enrichment is a horrific exemplar of what the Founders hoped to prevent: a president profiting from public office. Trump’s ventures—intending to accept the gift of a Qatari jet, profiting from the sale of a self-referential cryptocurrency, auctioning off a chance to have dinner with him—all reflect his disregard for the Founders’ concern.
Two of the Constitution’s efforts to restrict conflicts of interest are direct and distinct prohibitions on profiteering by the president. One of these (in Article II, Section 1) was an absolute ban on domestic gifts to the president: Aside from compensation for his service, “he shall not receive within that Period any other Emolument from the United States, or any of them.” Emolument, a word first recorded in the 15th century, signifies a “profit or gain arising from station, office, or employment.” That is, making money off one’s position by, say, selling favors to fellow citizens (for example, the opportunity to dine with the president) is expressly prohibited.
The second prohibition (in Article I, Section 9) was conditional. Presidents may not “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without Congress’s consent. In other words, the answer to the offer of a personal gift (such as the use of an airplane either during or after presidential service) is a constitutionally required “no,” unless Congress affirmatively authorizes it. Rejecting a gift is not “stupid,” as Trump suggested—it’s required by the law of the land, and for good reason.
In addition to these direct limitations on presidential conduct, also notable is that the impeachment clause (Article II, Section 4), which generally authorizes impeachment for “high crimes and misdemeanors” names two (and only two) crimes specifically as grounds for impeachment: treason and bribery—receipt of a gift in exchange for an official act. Not all gifts are bribes, but some are, and those would be grounds for removal from office.
Beyond these three instances, the Constitution twice addresses the problem of possible profiteering by other federal officials, namely members of Congress: in Article I, Section 6 and in the Twenty-Seventh Amendment (which restricts Congress’s ability to increase its own pay, and which was originally proposed in 1789).
What animated the Founders’ fear of conflicts of interest? An understanding of human nature and a respect for history.
First they recognized that influence could be readily purchased from unprincipled leaders. As Alexander Hamilton put it in “Federalist No. 22”: “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” Commenting on human nature, he went on to explain: “In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great preeminence and power, may find compensations for betraying their trust, which to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to over-balance the obligations of duty.” In short, Hamilton argued, the average citizen might (unless he or she was a person of “superior virtue”) put their own financial interests above their duty to the country.
The requirement of congressional consent for foreign gifts persists today. When I served as a minor official at the Department of Homeland Security 20 years ago (I was the acting assistant secretary for international affairs and routinely interacted with foreign officials), any ceremonial gifts above a de minimis limit that foreign officials gave me as part of my official duties were, as constitutionally required, turned over to the department for receipt, processing, and storage. Congressional consent to keep a few small gifts was authorized by the Foreign Gifts and Decorations Act.
Trump’s proposed acceptance of the Qatari jet, which he plans to use after he leaves office, stems from his view that Qatar is a country “we have successfully defended for many years” with a “special royal family.” This sort of conflict of interest is precisely what the Founders feared. Americans cannot know now whether Qatari security continues to be in America’s best interests or only in Trump’s desire to please his “special” friends. That doubt is exactly why the Framers adopted a formal practice of requiring the notice and consent of Congress before foreign gifts may be accepted.
An unfortunate flaw in the Founders’ design was that they anticipated ready compliance with the prohibition on gift receipt. I think they could have barely imagined a president accepting a personal gift without congressional consent despite the express words of the constitutional text. Nor could they have readily imagined a president soliciting personal benefits to himself or his family as a condition of access to and influence on his decision making.
Perhaps even more to the point, in the absence of such compliance, the Framers no doubt anticipated aggressive congressional oversight to enforce the obligations of consent, buttressed by the ultimate remedy of impeachment to compel compliance. And they might even have anticipated enforcement of the anti-emolument provisions in the courts. But Congress today is supine—this, perhaps more than anything, is what they could not possibly have imagined. And when, in the first Trump administration, emoluments cases were brought in the courts, they were delayed until after Trump left office and ultimately dismissed, leaving open questions of standing and substantive scope.
All of which puts the nation in an exceedingly uncomfortable place. The emoluments clauses were integral to how the Founders sought to constrain human nature, fearful as they were of self-interest triumphing over constitutional duty. But today, faced with a president who seemingly has no concern for constitutional limitations, the carefully crafted restrictions of the Constitution appear to be unenforceable; the courts are ineffective, and Congress doesn’t seem to care. The Framers, one suspects, would weep.
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