Enforcing the Anti-Corruption Provisions
of the Constitution
Karl A. Racine* and Elizabeth Wilkins†
The United States currently has a President who, unlike those who came before him,
refuses to extract himself from extensive business entanglements at home and abroad. Those
entanglements violate the Emoluments Clauses of the Constitution. They also pose serious
threats to the integrity of our democracy. This Article briefly lays out the legal argument for
why the President’s actions violate the Constitution. It also demonstrates that these clauses
are judicially enforceable, and the states are well-positioned to enforce them. While the
lawsuit brought by the D.C. Attorney General’s Office, alongside the Maryland Attorney
General’s Office, against the President clearly articulates how the President is violating the
law, this Article seeks to excavate the norms and principles that the laws protects and why
their violation threatens our system of government.
I
NTRODUCTION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
I.
A
LL THE
P
RESIDENT
’
S
E
MOLUMENTS
. . . . . . . . . . . . . . . . . . . . . . 451
II.
A H
ISTORY OF
G
UARDING
A
GAINST
E
MOLUMENTS
. . . . . . . . . 455
III.
S
TANDING
U
P FOR THE
E
MOLUMENTS
C
LAUSES
. . . . . . . . . . . . 461
A. Why Judicial Enforcement Matters . . . . . . . . . . . . . . . . . . . . . . . . 461
B. Why State Enforcement Makes Sense . . . . . . . . . . . . . . . . . . . . . . 465
C
ONCLUSION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
“[The President] can, of course, have no pecuniary inducement to
renounce or desert the independence intended for him
by the Constitution.”
–Alexander Hamilton
1
* Karl A. Racine was sworn in as the District of Columbia’s first elected Attorney General
on January 2, 2015. Since taking office, Attorney General Racine has built an independent
office, implemented data-driven reforms to the juvenile justice system, cracked down on
slumlords, and returned millions of dollars to consumers harmed by scams and abusive business
practices. As the District’s top lawyer, Attorney General Racine works to keep residents safe
from crime and fraud and uses the law to advance the public interest. He also protects taxpay-
ers by providing legal advice and representation to the Mayor and District government agen-
cies. Through his work as vice president of the bi-partisan National Association of Attorneys
General and as co-chair of the Democratic Attorneys General Association, Racine speaks out
for D.C. autonomy at the national level and pushes back against federal government policies
that harm District residents.
Born in Haiti, Attorney General Racine came to the District at the age of three and at-
tended D.C. public schools. He draws on over 25 years of legal and leadership experience,
including representing District residents who could not afford a lawyer at the D.C. Public
Defender Service, serving as Associate White House Counsel to President Bill Clinton, and
being managing partner of Venable LLP, where became the first African-American managing
partner of a top-100 American law firm.
† Elizabeth Wilkins is Senior Counsel for Policy at the Office of the Attorney General for
the District of Columbia. The authors would like to thank Stephanie Litos and Laura Becker-
man for their thoughtful contributions to the article.
1
T
HE
F
EDERALIST
N
O
. 73 (Alexander Hamilton).
450 Harvard Law & Policy Review [Vol. 13
I
NTRODUCTION
The United States of America faces a situation unprecedented in the
history of our country but powerfully and presciently anticipated by the
Framers of our Constitution. A sitting President refuses to give up far-
reaching business entanglements that allow him to receive profits from for-
eign and domestic governments
—
profits that may influence his actions as
President and divide his loyalty. Despite centuries of precedent whereby
Presidents and other office holders took pains to avoid these conflicts, Presi-
dent Donald J. Trump has taken no such precautions; in fact, he has boasted
about his receipt of profits from governments and that he “like[s] them very
much.”
2
These actions leave the American people to wonder whom the Pres-
ident serves: his people or his own interests.
Thanks to the foresight of the founding generation, though, the Ameri-
can people have recourse. Our founding document, the Constitution, pro-
vides the roadmap. Twin clauses of the Constitution were written to prevent
precisely this kind of undue influence and ensure faithful service to the
American people. The Foreign Emoluments Clause prohibits any “Person
holding any Office of Profit or Trust” from accepting “any present, Emolu-
ment, Office, or Title, of any kind whatever, from any King, Prince, or for-
eign state” without “the Consent of Congress.”
3
In the Domestic
Emoluments Clause, the Constitution turns its gaze inward, allowing the
President a salary but otherwise preventing him from “receiv[ing] . . . any
other Emolument from the United States, or any of them” during his presi-
dency.
4
Together, these provisions focus the President on his oath to “faith-
fully execute” his office and “preserve, protect and defend the Constitution
of the United States”
5
free from monetary self-interest or other improper
outside influence.
Our office, the Attorney General’s Office for the District of Columbia,
alongside the Maryland Attorney General’s Office, have sued to enforce
these two original anti-corruption provisions in the Constitution. As we
have successfully argued,
6
constitutionally prohibited “emoluments” include
any profit, gain, or advantage, including those gleaned from market rate
transactions. President Trump’s failure to divest from his extensive business
interests at home and abroad constitutes a violation of the Constitution’s
Emoluments Clauses. Furthermore, despite President Trump’s insistence
otherwise, these clauses are judicially enforceable, and the states
—
especially
2
Stephen Rex Brown, Donald Trump made millions from Saudi Arabia, but trashes Hillary
Clinton for Saudi donations to the Clinton Foundation, N.Y. D
AILY
N
EWS
(Sept. 4, 2016, 4:00
AM), http://www.nydailynews.com/news/politics/exclusive-donald-trump-made-millions-
saudi-government-article-1.2777211 [https://perma.cc/HT5C-GV42].
3
U.S. C
ONST
. art. I, § 9, cl. 8.
4
U.S. C
ONST
. art. II, § 1, cl. 7.
5
U.S. C
ONST
. art. II, § 1, cl. 8.
6
District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018) (holding that
plaintiffs have stated a claim and denying the President’s motion to dismiss).
2019] Enforcing the Anti-Corruption Provisions of the Constitution 451
Maryland and the District of Columbia
—
are well-positioned to enforce
them.
This Article touches on the legal arguments that we make in our law-
suit, but the emphasis of the Article is on what is at stake: the nature of the
threat to the independence and legitimacy of the presidency today; the paral-
lel historical concerns animating the Founders when they wrote these
clauses; and the importance of there being a judicial enforcement mechanism
in order to secure that independence. In other words, while our lawsuit
clearly articulates how the President is violating the law, this Article seeks to
excavate the norms and principles that the law protects and why their viola-
tion threatens our system of government.
This Article proceeds in three parts. Part I describes our President’s
extensive business entanglements and the threat they pose to our democracy
today. Part II traces the deep historical roots of the concerns about corrup-
tion at our country’s founding, and how that history informs how we must
read the Emoluments Clauses today
—
as broad, prophylactic rules against
corruption. Part III addresses why the Emoluments Clauses must be en-
forceable by the courts, and it demonstrates that the states are uniquely situ-
ated to enforce these anti-corruption provisions.
Our lawsuit seeks to enforce the lines drawn by the Emoluments
Clauses. Our Founders had the foresight to be deeply concerned about the
opportunities for governments, foreign and domestic, to exert undue influ-
ence on the President through appeal to his private interests. Nothing less
than the loyalty of our leadership is at stake.
I. A
LL THE
P
RESIDENT
’
S
E
MOLUMENTS
In an unprecedented turn of events, we currently have a sitting Presi-
dent who refuses to give up his ownership interest in a global business em-
pire that bears his name. That business puts him in dealings with a far-flung
collection of domestic and foreign government officials, and the limited de-
tails we know of those dealings call into significant question the President’s
fidelity to his public duty above his private gain. In statements and apparent
deeds, the President has acknowledged that he can, and might, profit from
the presidency. This untenable situation puts American policy at the service
of private interests, puts all comers before the President in a position of
having to decide whether or not to participate in this corrosive scheme, and
undermines the legitimacy of our public institutions.
Because President Trump has refused to extricate himself from his do-
mestic and international business entanglements, he is receiving emoluments
that could compromise his loyalty to the national interest in favor of his own
bottom line. For starters, foreign officials and government entities regularly
purchase rooms, event space, and services at Trump hotels. For example, the
Kuwaiti government moved a major event previously scheduled to be at the
Four Seasons in the District of Columbia to the Trump International Hotel
452 Harvard Law & Policy Review [Vol. 13
shortly after the election.
7
And the government of Saudi Arabia spent more
than $270,000 at the Trump International Hotel between November, 2016
and February, 2017, at the same time that they were lobbying to roll back a
law that allows survivors of victims of the September 11th terrorist attacks to
sue Saudi Arabia.
8
Indeed, profits at the Trump International Hotel have
wildly exceeded expectations: the hotel made $1.97 million in the first four
months of the presidential term, in contrast to the $2.1 million loss the hotel
itself projected.
9
One foreign diplomat has made a statement that suggests
an answer for the remarkable rise: “Why wouldn’t I stay at [the President’s]
hotel blocks from the White House, so I can tell the new president, ‘I love
your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your
competitor?’”
10
That is to say, foreign diplomats are actively seeking to do
business at the Trump International Hotel in order to curry favor with the
President. Meanwhile, the President in his former and current lives has
made his appreciation clear. Of Saudi Arabia, he has said, for instance, “I get
along great with all of them. They buy apartments from me. . .They spend
$40 million, $50 million. Am I supposed to dislike them? I like them very
much.”
11
Questionable hotel patrons are not limited to foreign governments;
President Trump is also receiving emoluments from domestic governments.
7
See Jackie Northam, Kuwait Celebration At Trump Hotel Raises Conflict Of Interest Ques-
tions, NPR (Feb. 25, 2017, 6:33 AM), https://www.npr.org/sections/parallels/2017/02/25/
517039323/kuwait-celebration-at-trump-hotel-raises-conflict-of-interest-questions [https://
perma.cc/V7B3-FJDK].
8
See Byron Tau & Rebecca Ballhaus, Trump Hotel Received $270,000 From Lobbying
Campaign Tied to Saudis: Gulf kingdom opposes law that lets Americans sue foreign countries over
terrorist attacks, W
ALL
S
T
. J. (June 6, 2017, 7:53 AM), https://www.wsj.com/articles/trump-
hotel-received-270-000-from-lobbying-campaign-tied-to-saudis-1496700739 [https://
perma.cc/BU4D-J482]. Saudi Arabia is implicated in more than one instance of significant
payments to the Trump empire. The Trump International Hotel in Manhattan put up an
impressive 13% increase in profits in the first quarter of 2018, thanks in large part to a visit
from a large set of travelers accompanying the Crown Prince. Reporting has been unable to
uncover whether any of the payments from those rooms came from the government of Saudi
Arabia, which only points to a larger problem: The opacity of the President’s business dealings,
and the public’s inability to understand who might be influencing the President. See David A.
Fahrenthold & Jonathan O’Connell, At President Trump’s hotel in New York, revenue went up
this spring
—
thanks to a visit from big-spending Saudis, W
ASH
. P
OST
(Aug. 3, 2018), https://
www.washingtonpost.com/politics/at-president-trumps-hotel-in-new-york-revenue-went-up-
this-spring
—
thanks-to-a-visit-from-big-spending-saudis/2018/08/03/58755392-9112-11e8-
bcd5-9d911c784c38_story.html?utm_term=.F8e67aa910a2 [https://perma.cc/T8ZW-JRPN].
9
See Jonathan O’Connell, Trump D.C. hotel turns $2 million profit in four months, W
ASH
.
P
OST
(Aug. 10, 2017), https://www.washingtonpost.com/politics/trump-dc-hotel-turns-2-
million-profit-in-four-months/2017/08/10/23bd97f0-7e02-11e7-9d08-b79f
191668ed_story.html?utm_term=.74bf26afd775 [https://perma.cc/Z7EZ-XHSU]. In addi-
tion, the average rate for rooms at the Trump International Hotel beat the hotel’s own expec-
tations by 57%, to the point where they may now be the most expensive rooms in town. See id.
10
Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump hotel is place to be,
W
ASH
. P
OST
(Nov. 18, 2016), https://www.washingtonpost.com/business/capitalbusiness/
2016/11/18/9da9c572-ad18-11e6-977a-1030f822fc35_story.html?utm_term=.74e2ef91fb83
[https://perma.cc/88AK-DTVX].
11
Brown, supra note 2.
2019] Enforcing the Anti-Corruption Provisions of the Constitution 453
For instance, last year Maine Governor Paul LePage drew media scrutiny for
his use of taxpayer funds at the Trump International Hotel when attending
White House meetings. The Portland Press Herald found that the hotel
expenses for LePage’s security team alone totaled $2,250, including $40
breakfasts. LePage’s spokesman defended the expenditures, telling the news-
paper that the governor was meeting with federal officials “in an effort to
benefit the Maine people.”
12
This is precisely the problem: that government
officials may be spending funds at the Trump International Hotel in order to
influence the President and advance their causes.
These descriptions of happenings at the Trump International Hotel in
Washington, D.C. are only a small slice of the concerning conduct in which
the President has engaged. From federal and local government entities
spending money at Trump properties,
13
to the State Department advertising
for Trump properties,
14
to government concessions and permissions granted
to the Trump Organization,
15
to the myriad other examples
16
of actions
taken by foreign and domestic governments to the benefit of the Trump
Organization, a distinct impression is created that these activities are specifi-
cally to benefit President Trump’s vast global business empire
—
and Presi-
dent Trump himself. If his private business interests are winning, it is the
American people who are losing: losing a faithful public servant, and losing
out on substantive policies that are in the best interest of the country.
Past Presidents have recognized that the financial investments they
hold before office can cause conflicts of interest, and they have taken steps to
avoid such conflicts. Presidents going back as far as Dwight D. Eisenhower
have used blind trusts
—
in which an independent financial manager oversees
assets without the owner’s involvement
—
as a way to separate themselves
from knowledge of their financial interests that might actually influence or
12
Kevin Miller & Scott Thistle, Luxury hotels, fine dining for LePage on taxpayers’ dime,
P
ORTLAND
P
RESS
H
ERALD
(July 23, 2017), https://www.pressherald.com/2017/07/23/luxury
-hotels-fine-dining-for-lepage-on-taxpayers-dime-records-review-show-lepage-administra
tion-spent-35000-on-d-c-trips/ [https://perma.cc/G5VV-ZTPV].
13
See Derek Kravitz, Alex Mierjeski & Gabriel Sandoval, We’ve Found $16.1 Million in
Political and Taxpayer Spending at Trump Properties, P
RO
P
UBLICA
(June 27, 2018, 6:00 AM),
https://www.propublica.org/article/political-and-taxpayer-spending-at-trump-properties-16-
1-million [https://perma.cc/Z7CG-RZ7L] (finding $400,000 in such spending but noting
that “[t]he state and local tally appears to be a gross undercount because of the agencies’ spotty
disclosures and reporting”).
14
See, e.g., Darren Samuelsohn, State Department, U.S. embassies promoted Trump’s Mar-a-
Lago, P
OLITICO
(Apr. 24, 2017, 3:50 PM), https://www.politico.com/story/2017/04/24/state-
department-us-embassy-mar-a-lago-237537 [https://perma.cc/644B-9KSF].
15
See, e.g., Michael LaForgia & Steve Eder, When that Feisty Neighbor Becomes the Presi-
dent, N.Y. T
IMES
(May 6, 2017), https://www.nytimes.com/2017/05/06/us/politics/donald-
trump-mar-a-lago.html [https://perma.cc/2A5M-X8JX].
16
See, e.g., C
ITIZENS FOR
E
THICS AND
R
ESPONSIBILITY IN
W
ASHINGTON
, P
ROFITING
FROM THE
P
RESIDENCY
: A Y
EAR
’
S
W
ORTH OF
P
RESIDENT
T
RUMP
’
S
C
ONFLICTS OF
I
NTER-
ESTS
(Jan. 2018), https://www.citizensforethics.org/profitingfromthepresidency/ [https://
perma.cc/PV8M-G3EZ].
454 Harvard Law & Policy Review [Vol. 13
be seen as influencing their policy decisions.
17
Others, like Barack Obama,
have only held investments that, by their nature, do not exert direct influence
in favor of or against particular presidential actions.
18
The danger, and indeed, illegality of President Trump’s actions and the
steps his predecessors have taken have been made clear to the President, but
to no avail. President Trump continues to have intimate knowledge of his
business holdings. Though he turned control of his businesses over to his
sons, he retains significant ownership, and he apparently receives regular fi-
nancial reports.
19
And although he has promised to turn all profits from for-
eign entities over to the United States Treasury in order to avoid the
appearance of a conflict of interest, there is no transparency in the way those
payments are calculated and no way to ensure that they are accurate.
20
And
President Trump has taken no action whatsoever to account for the domestic
emoluments he has received.
21
This cloud over the presidency is making a difference in the minds of
Americans. Transparency International, a nonprofit recognized for globally
tracking corruption and the perception of corruption, found stark increases
in the perception of corruption among Americans between fall 2016 and fall
2017.
22
Of all the government institutions asked about, the Office of the
President was found to be considered the most corrupt, and that perception
is on the rise: 44% of respondents perceive the White House as corrupt, up
from 36% the year before.
23
And almost 70% of Americans believe the gov-
ernment is failing to fight corruption, up from just over 50% the year
before.
24
What these numbers tell us is that an increasing number of Ameri-
cans no longer believe that their government is working for them or that
their office holders have the public interest at heart. Over the long term, that
loss of faith can turn to lack of participation and can corrode the vitality of
our political system. Our Founders knew the dangers of undue influence on
the presidency. That is why they provided against it.
17
Daphna Renan, Presidential Norms and Article II, 131 H
ARV
. L. R
EV
. 2187, 2218 n.162
(2018).
18
Id.
19
See Dan Alexander, After Promising Not To Talk Business With Father, Eric Trump Says
He’ll Give Him Financial Reports, F
ORBES
(Mar. 24, 2017, 9:00AM), https://www.forbes.com/
sites/danalexander/2017/03/24/after-promising-not-donald-talk-business-with-father-eric-
trump-says-president-give-him-financial-reports/#337e50d7359a [https://perma.cc/CLD4-
WZDQ].
20
See David A. Fahrenthold, President Trump’s company reveals how much foreign profit it
donated to the U.S. Treasury: $151,470, W
ASH
. P
OST
(Mar 9, 2018), https://www.washington
post.com/news/post-politics/wp/2018/03/06/the-presidents-company-wont-say-how-much-
money-it-made-in-foreign-profits-last-year-have-you-got-a-guess/?utm_term=.98ea58bcbaca
[https://perma.cc/TSN8-6FRR].
21
Id.
22
Corruption in the USA: The Difference a Year Makes, T
RANSPARENCY
I
NT
’
L
(Dec. 12,
2017), https://www.transparency.org/news/feature/corruption_in_the_usa_the_difference_a_
year_makes [https://perma.cc/R4QV-EHRK].
23
Id.
24
Id.
2019] Enforcing the Anti-Corruption Provisions of the Constitution 455
II. A H
ISTORY OF
G
UARDING
A
GAINST
E
MOLUMENTS
We have argued
—
and a federal judge has agreed
—
that the text of the
Constitution is clear: “emoluments” prohibited by the Constitution include
any profit, gain, or advantage, including those gleaned from market rate
transactions like the ones President Trump amasses through his prodigious
business dealings domestically and abroad.
25
The Foreign and Domestic
Emoluments Clauses thus prevent the President from receiving any such
benefits. That reading, as is spelled out in detail in the judicial order denying
the President’s motion to dismiss, is supported by the lion’s share of diction-
aries from the Founding era,
26
specialized legal and economic treatises of the
era,
27
and use by members of the founding generation themselves.
28
It is also
supported by the surrounding, sweeping text of both clauses.
29
The Foreign
Emoluments Clause bars the President from accepting “any” emoluments
and other enumerated benefits “of any kind whatever”
—
text that the De-
partment of Justice’s Office of Legal Counsel has called an “absolute prohi-
bition”
30
that is “both sweeping and unqualified.”
31
The Domestic
Emoluments Clause likewise bars the President from taking “any other
Emolument” from federal or state government outside his salary.
32
Note what this broad language does not include: any requirement of a
corresponding action by the President. This is not a prohibition on quid pro
quo corruption or bribery only. It bars him from receiving payments and
benefits from governments at all. That type of bar recognizes that the very
act of accepting benefits from governments may influence the President in
impermissible ways, and it serves as a prophylactic rule against both actual
and apparent corruption, both corrosive to democracy.
A close examination of the history of the Emoluments Clauses gives life
to the concerns that animated the Founders, as do the decades of interpreta-
tion by the political branches of government that relied on the Framers’
25
The Court ruled that “that the term ‘emolument’ in both Clauses extends to any profit,
gain, or advantage, of more than de minimis value, received by him, directly or indirectly, from
foreign, the federal, or domestic governments. This includes profits from private transactions,
even those involving services given at fair market value.” District of Columbia v. Trump, 315
F. Supp. 3d 875, 904 (D. Md. 2018).
26
Id. at 891.
27
Id. at 892–93.
28
Id. at 893–95.
29
Id. at 887–88.
30
Applicability of Emoluments Clause to Employment of Government Employees by
Foreign Public Universities, 18 Op. O.L.C. 13, 17 (1994).
31
Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17
Op. O.L.C. 114, 121 (1993) (citing 49 Comp. Gen. 819, 821 (1970)).
32
U.S. C
ONST
. art. II, § 1, cl. 7. The President has argued in our lawsuit that this reading
of the term “emolument” would make the term “present” redundant. Far from it. As has been
articulated in this case, the term “present” at the Founding referred to the specific practice of
European heads of state giving gifts as a part of foreign affairs; “emolument” captures broadly
“all types of financial transactions
—
solicited or unsolicited, reciprocated or unreciprocated,
official or private.” District of Columbia, 315 F. Supp. 3d at 888–89.
456 Harvard Law & Policy Review [Vol. 13
broad purposes to interpret the clauses. Matching those concerns against the
President’s actions today paints a striking picture of a leader who is flagrantly
transgressing the boundaries the Framers gave us.
At the Founding, a myriad of interests other than the national one pul-
led at our public figures. The Founders of our fledgling democracy feared the
undue influence of the more powerful European countries looking to ad-
vance their own goals.
33
In addition, our first attempt at a federal govern-
ment under the Articles of Confederation dissolved in large part due to the
factious nature of the states’ different interests, and to those states putting
their own interests ahead of the whole.
34
No less then than today, democracy
required vigilance against undue influence by those outside interests at home
and abroad in order to be preserved and to flourish.
Political corruption specifically was a core concern at the birth of our
country, both as a motivating factor in the break with Great Britain
35
and as
a consideration in how to set up a republic that would endure.
36
James
Madison recorded “corruption” in his notes from the Constitutional Con-
vention no less than 54 times
—
more than factions, violence, or instability.
37
As Charles Cotesworth Pinckney, the delegate credited with introducing the
Foreign Emoluments Clause, put it, the Founders wanted to make sure that
“corruption was more effectually guarded against, in the manner this govern-
ment was constituted, than in any other that had ever been formed.”
38
In
drafting both the Foreign and Domestic Emoluments Clauses, the Founders
contemplated the real political corruption they saw corroding the govern-
ments that surrounded them domestically and abroad, and considered how
to write broad, prophylactic rules to guard against that corrosion.
The Articles of Confederation, and later the Constitution, were written
against a backdrop of European corruption from which the newly minted
Americans wished to make a clean break. Notorious incidents of foreign
corruption played into the Founders’ thinking as they imagined what provi-
sions were necessary to safeguard their young republic. In particular, the
Founders noted two seventeenth century incidents of outright bribery, in
33
See Zephyr Teachout, The Anti-Corruption Principle, 94 C
ORNELL
L. R
EV
. 341, 353
(2009) [hereinafter The Anti-Corruption Principle]; Z
EPHYR
T
EACHOUT
, C
ORRUPTION IN
A
MERICA
: F
ROM
B
ENJAMIN
F
RANKLIN
’
S
S
NUFF
B
OX TO
C
ITIZENS
U
NITED
18 (2014) [here-
inafter C
ORRUPTION IN
A
MERICA
].
34
See generally G
EORGE
W
ILLIAM
V
AN
C
LEVE
, W
E
H
AVE
N
OT A
G
OVERNMENT
: T
HE
A
RTICLES OF
C
ONFEDERATION AND THE
R
OAD TO THE
C
ONSTITUTION
(2017) (describing
state and regional infighting over issues like trade and western expansion as key reasons for the
failure of the Articles of Confederation).
35
B
ERNARD
B
AILYN
, T
HE
I
DEOLOGICAL
O
RIGINS OF THE
A
MERICAN
R
EVOLUTION
xiii (enlarged ed. 1992).
36
See The Anti-Corruption Principle, supra note 33, at 347.
37
See id. at 352–53, 352 n.49 (2009) (citing Notes of James Madison (June 23, 1787), in 1
T
HE
R
ECORDS OF THE
F
EDERAL
C
ONVENTION OF
1787, passim; Notes of Robert Yates
(June 23, 1787), in 1 T
HE
R
ECORDS OF THE
F
EDERAL
C
ONVENTION OF
1787, passim).
38
4 T
HE
D
EBATES IN THE
S
EVERAL
S
TATE
C
ONVENTIONS ON THE
A
DOPTION OF THE
F
EDERAL
C
ONSTITUTION
302 (Jonathan Elliot ed., 1836).
2019] Enforcing the Anti-Corruption Provisions of the Constitution 457
which Louis XIV paid Charles II and later James II for strategic alliances in
foreign affairs.
39
For example, Charles Coteworth Pinckney, speaking at the
South Carolina Ratification Convention, noted the bribe of “Charles II.,
who sold Dunkirk to Louis XIV.”
40
But the Founders’ concerns were not limited to outright bribery. In
Europe at the time, there was a known practice, spoken of during the consti-
tutional debates, of heads of state giving gifts at moments of foreign diplo-
macy. The French, in particular, had a practice of giving presents du roi or
presents du conge at key diplomatic moments
—
indeed, the practice engen-
dered some of the United States’ earliest emoluments clause incidents.
41
As
one delegate put the problem during the Virginia debates,
A box was presented to our ambassador by the king of our allies. It
was thought proper, in order to exclude corruption and foreign
influence, to prohibit any one in office from receiving or holding
any emoluments from foreign states. I believe, that if at that mo-
ment, when we were in harmony with the king of France, we had
supposed that he was corrupting our ambassador, it might have
disturbed that confidence, and diminished that mutual friendship,
which contributed to carry us through the war.
42
Thus, when the Founders looked about for the real-world situations
their President and other officials would face, they found themselves con-
cerned not only with outright bribery, but also with exchanges suggesting
influence, or the potential to corrupt, and with the perception that America’s
public office holders were motivated by anything other than the public good.
The Americans were not alone in their concern. They may have looked
to an extant Dutch rule adopted in the seventeenth century, prohibiting for-
eign ministers from taking “any presents, directly or indirectly, in any man-
39
G
EORGE
C
LARK
, T
HE
L
ATER
S
TUARTS
: 1660–1714, at 86–87, 130 (2d ed. 1956); see
B
ARRY
C
OWARD
, T
HE
S
TUART
A
GE
262–65, 267, 274–75 (1980).
40
D
EBATES IN THE
S
EVERAL
S
TATE
C
ONVENTIONS
, supra note 38, at 264. Numerous
others noted concern for the same incidents. Gouveneur Morris remarked that even a king,
who “[o]ne would think . . . well secured agst. Bribery . . . was bribed by Louis XIV.” 2 T
HE
R
ECORDS OF THE
F
EDERAL
C
ONVENTION OF
1787, at 68–69 (Max Farrand ed., rev. ed.
1966). Early commentators noted the same. See, e.g., S
T
. G
EORGE
T
UCKER
, 1 B
LACK-
STONE
’
S
C
OMMENTARIES
: W
ITH
N
OTES OF
R
EFERENCE
,
TO THE
C
ONSTITUTION AND
L
AWS
,
OF THE
F
EDERAL
G
OVERNMENT OF THE
U
NITED
S
TATES
;
AND OF THE
C
OMMON-
WEALTH OF
V
IRGINIA
295 (1803) (“In the reign of Charles the second of England, that
prince, and almost all of his officers of state were either actual pensioners of the court of
France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign
of that monarch has been, accordingly proverbially disgraceful to his memory.”); W
ILLIAM
R
AWLE
, A V
IEW OF THE
C
ONSTITUTION OF THE
U
NITED
S
TATES OF
A
MERICA
120 (2d ed.
1829) (“[I]t is now known that in England a profligate prince [Charles II] and many of his
venal courtiers were bribed into measures injurious to the nation by the gold of Louis XIV.”).
41
C
ORRUPTION IN
A
MERICA
, supra note 33, at 19–20; see also infra notes 68–70 and
accompanying text.
42
The Anti-Corruption Principle, supra note 33, at 362 (citing D
AVID
R
OBERTSON
, D
E-
BATES AND
O
THER
P
ROCEEDINGS OF THE
C
ONVENTION IN
V
IRGINIA
331–32 (2d ed. 1805)
(1788) (recording the statement of Governor Edmund Randolph)).
458 Harvard Law & Policy Review [Vol. 13
ner or way whatever.”
43
They wrote a similarly strict rule into the Articles of
Confederation, which lacked the exception for Congress’s consent.
44
In the
years between the Articles of Confederation and the Constitution, a practice
developed whereby officials came to Congress with gifts that were awkward
to turn away.
45
And so the exception allowing for Congress’s consent was
created, and the Foreign Emoluments Clause was enshrined in the U.S.
Constitution.
Foreign corruption was not the only concern at the Founding. Corrup-
tion from within was also prevalent in the minds of the Founders. They had
watched as Great Britain, a great experiment in good governance, had fallen
prey to the parochial interests of the monarch and of wealth-seeking individ-
uals by way of payments and gifts of offices and titles.
46
Indeed, they went so
far as to consistently compare Britain with Rome, lamenting the descent of a
well-designed government into corruption.
47
They also looked to the corrup-
tion in their own state legislatures and the Continental Congress as caution-
ary tales as they tried to create the right structure for their new government.
48
For the period between the institution of the Articles of Confederation and
the Constitutional Convention, the federal and state governments were
awash with commercial transactions that blurred the lines between public
finance and private profit, pointing to the need for clear guidelines to sepa-
rate public office from private gain.
49
So came the Domestic Emoluments Clause, preventing the President
from receiving “any other Emolument” besides his salary “from the United
States, or any of them.” In explaining the virtues of the clause, Alexander
Hamilton wrote that the power over the President’s compensation would
allow the legislature to “render him . . . obsequious to their will . . . either
reduc[ing] him by famine, or tempt[ing] him by largesses, to surrender at
43
C
ORRUPTION IN
A
MERICA
, supra note 33, at 20 (citing J
OHN
B
ASSETT
M
OORE
&
F
RANCIS
W
HARTON
, A D
IGEST OF
I
NTERNATIONAL
L
AW
579 (1906)).
44
“[N]or shall any person holding any office of profit or trust under the united states, or
any of them, accept of any present, emolument, office or title of any kind whatever from any
king, prince or foreign state.” A
RTICLES OF
C
ONFEDERATION OF
1781, art. VI, para. 1.
45
See infra notes 68–70.
46
See C
ORRUPTION IN
A
MERICA
, supra note 33, at 18; The Anti-Corruption Principle,
supra note 33, at 349–50. See also James D. Savage, Corruption and Virtue at the Constitutional
Convention, 56 J. P
OL
. 174, 175 (1994).
47
See C
ORRUPTION IN
A
MERICA
, supra note 33, at 350.
48
See id. at 348–49.
49
Brief of Amici Curiae by Certain Legal Historians on Behalf of Plaintiffs at 14, n.41,
District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018) (No. 17-1596). The
example of Robert Morris is particularly notable: A merchant who helped supply the military
while also holding public office, his conduct was routinely attacked by critics. As he put it in a
letter to George Washington, others would have to determine “whether a sincere Regard to
public Justice and public Interest or a sinister Respect to my own private Emolument were
influential Motives of my Conduct.” Id. (citing Letter from Robert Morris to George Wash-
ington (May 23, 1783), in 8 T
HE
P
APERS OF
R
OBERT
M
ORRIS
, 1781–1784, at 130–31 (E.J.
Ferguson ed. 1995)). This exchange also serves as an example, discussed below, of the use of
the word “emolument” at the time of the Founding to mean broadly a profit, gain or
advantage.
2019] Enforcing the Anti-Corruption Provisions of the Constitution 459
discretion his judgment to their inclinations.”
50
The Domestic Emoluments
Clause guards against this dangerous eventuality. By preventing legislative
changes to the President’s salary and prohibiting federal and state govern-
ments from providing other benefits to him, the President’s independence
and fidelity to the people could be preserved:
They can neither weaken his fortitude by operating on his necessi-
ties, nor corrupt his integrity by appealing to his avarice.
—
Neither the Union, nor any of its members, will be at liberty to
give, nor will he be at liberty to receive any other emolument, than
that which may have been determined by the first act. He can of
course have no pecuniary inducement to renounce or desert the
independence intended for him by the Constitution.
51
This history
—
the Founders’ concern for a republic led by servants of
the public good, and their construction of the Emoluments Clauses to help
achieve that republic
—
points to a broad understanding of those clauses. The
clauses are concerned not simply with direct bribery, but with improper in-
fluence, and with shoring up the public’s perception of their government as
having integrity. The clauses are prophylactic, meant to guard against be-
coming the France, or Great Britain, or corrupt state legislature of their day.
The broad, prophylactic purpose of the clauses demonstrated by this
history has been the starting point for government ethics officials and legal
counselors as they have interpreted the Emoluments Clauses and applied
them to the conduct of various officials. There exist decades of interpretation
from the Department of Justice’s Office of Legal Counsel, the Government
Accountability Office’s Comptroller General, and guidance from other parts
of the government, including the Department of Defense.
52
Over and over
from those sources, what we see is a reliance on the broad original purposes
of the clauses, as well as their sweeping language, in determining how they
apply to a specific set of facts. The analysis in those opinions hinges on the
Framers’ concern for potential improper influence, not merely a narrow con-
ception of bribery or quid pro quo corruption.
According to those sources, the clauses are concerned with “payments
which have a potential of influencing or corrupting the integrity of the recipi-
ent.”
53
The Framers looked to bar, and modern interpretations should seek
to snuff out, payments that could “be construed as being . . . received in
consequence of [the officer’s] possession of the Presidency,” that could
“sway” the President, and through which an entity “could ‘appeal to [the
50
T
HE
F
EDERALIST
N
O
. 73 (Alexander Hamilton).
51
Id.
52
See Brief of Former Government Ethics Officers as Amici Curiae Supporting Plaintiffs
at 1–2, District of Columbia, 315 F. Supp. 3d 875 (No. 17-1596) [hereinafter, Brief of Former
Government Ethics Officers].
53
President Reagan’s Ability to Receive Retirement Benefits from the State of California,
5 Op. O.L.C. 187, 188 (1981) (emphasis added).
460 Harvard Law & Policy Review [Vol. 13
President’s] avarice’ by rewarding sympathetic actions.”
54
The Foreign
Emoluments Clause in particular must be read to be “directed against every
possible kind of influence by foreign governments.”
55
“Every possible kind of influence” includes payments that are mediated
through a commercial transaction or corporate entity. This is an unsurprising
result, given that the clauses have been applied broadly to serve their in-
tended purposes. So, for instance, the Office of Congressional Ethics has
concluded that receiving proceeds from a rental property rented to a foreign
government violates the Foreign Emoluments Clause because there is “no
exception” for “profit from a fair market value commercial transaction.”
56
The Office of Legal Counsel likewise concluded that government officers
who are at the same time partners in a law firm and who receive a “propor-
tionate share” of the profits derived from those services, violate the Foreign
Emoluments Clause because “the partnership would in effect be a conduit
for that [foreign] government,”
57
even though they are not directly engaged
in providing services to foreign governments.
The history of the Emoluments Clauses at the time they were written
and the interpretation of those Clauses over the years support the textual
reading that prohibited “emoluments” include any profit, gain, or advantage,
including those gleaned from market rate transactions. That broad prophy-
lactic rule undeniably catches within its net President Trump’s current busi-
ness dealings with foreign and domestic governments. As a formal matter, all
the payments the President receives for hotel rooms and other goods and
services through the Trump International Hotel described in Part I consti-
tute receipt of emoluments in direct contravention of the Constitution. So
too does his receipt of other non-monetary benefits briefly noted above, such
as free advertising for Trump properties by the State Department, or conces-
sions and permits for construction and other business needs by local govern-
ments. No matter that these payments and benefits flow to the President by
way of a corporation: that corporation serves merely as “a conduit” for the
54
U.S. Comp. Gen., Opinion Letter on Query Concerning President Reagan’s State Pen-
sion (Jan. 18, 1983), B-207467, 1983 WL 27823, at *3 (citing T
HE
F
EDERALIST
N
O
. 73
(Alexander Hamilton)) (emphasis added); see also Att’y Gen., B-122100, 1955 WL 918
(Comp. Gen. Jan. 12, 1955) (finding payments not to be prohibited by the Foreign Emolu-
ments Clause because they “obviously were not intended to influence [the employee] as an
office of the United State”).
55
Memorandum for Andrew F. Gehmann, Exec. Assistant, Office of the Att’y Gen.,
from Norbert A. Schlei, Assistant Att’y Gen., O.L.C. (Oct. 16, 1962), https://www.justice
.gov/olc/page/file/935741/download [https://perma.cc/F56Z-XWVU]. For a lengthy discus-
sion of these opinions, see generally Brief of Former Government Ethics Officers, supra note
52.
56
O
FFICE OF
C
ONG
. E
THICS
, U.S. H
OUSE OF
R
EPRESENTATIVES
, R
EVIEW
N
O
. 17-
1147: D
ELEGATE
M
ADELEINE
Z. B
ORDALLO
(2017), https://ethics.house.gov/sites/ethics
.house.gov/files/OCE%20Report%20and%20Findings_6.pdf [https://perma.cc/P53E-G3EU].
57
Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17
Op. O.L.C. 114, 119 (1993).
2019] Enforcing the Anti-Corruption Provisions of the Constitution 461
impermissible emoluments to transfer from the hands of foreign and domes-
tic governments to the hands of the President.
58
Stepping back from the law to gain perspective on the harm at hand, it
is clear that President Trump’s dealings encompass all the Founders’ con-
cerns about Great Britain, a cautionary tale of a great government gone to
rot, with the executive open for business in the form of personal favor. As
noted in Part I, government officials do business with the President’s busi-
nesses in order to curry favor and fail to object when those businesses push
for concessions in order to avoid potential negative consequences. And the
President favorably takes note of lucrative business dealings, going so far as
to admit that he has “a little conflict of interest” in places like Turkey where
he owns properties and with whom the United States has significant and
delicate matters to work through.
59
These are dealings that absolutely have
the “potential of influencing or corrupting” the President;
60
they surely “ap-
peal[ ] to his avarice.”
61
The President has gone outside the bounds the
Framers created, and he must be stopped.
III. S
TANDING
U
P FOR THE
E
MOLUMENTS
C
LAUSES
There can be no question but that our country’s original anti-corruption
provisions are crucial to our democracy in general and to this moment in
particular. The question becomes, how can they be vindicated? By what
mechanism can the corruption line be policed and made real in a moment of
crisis? These are the real questions at the heart of the legal battles over the
justiciability of the Emoluments Clauses. Part III.A discusses what is at
stake in these debates, focusing less on the doctrines of the various jus-
ticiability issues raised in the Emoluments Clause lawsuits that have been
filed and more on the practical implications of enforcement. Part III.B goes
on to discuss why states, and Maryland and the District of Columbia in
particular, are well suited to vindicate these constitutional provisions.
A. Why Judicial Enforcement Matters
Multiple plaintiffs have brought suit against the President for his viola-
tion of the Emoluments Clauses. In addition to the suit brought by the Dis-
trict of Columbia and Maryland, private plaintiffs
62
and members of
58
Id.; see also District of Columbia v. Trump, 315 F. Supp. 875, 902–03 (D. Md. 2018).
59
Jeremy Venook, Could Trump’s Financial Ties Have Influenced His Phone Call With
Erdogan?, T
HE
A
TLANTIC
, (Apr. 18, 2017), https://www.theatlantic.com/business/archive/
2017/04/trump-erdogan-conflict-of-interest/523485/ [https://perma.cc/L8A7-CF5J].
60
President Reagan’s Ability to Receive Retirement Benefits from the State of California,
5 Op. O.L.C. 187, 188 (1981).
61
T
HE
F
EDERALIST
N
O
. 73 (Alexander Hamilton).
62
See CREW v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y. 2017). Plaintiffs include a non-
profit organization whose mission is to protect rights of citizens to be informed about activities
of government, an organization that advocates to improve working conditions in food industry,
and hospitality business operators.
462 Harvard Law & Policy Review [Vol. 13
Congress
63
have sued to enforce the clauses. In each case, the President has
raised objections that go to the ability of those plaintiffs to bring suit at all.
Among other objections, he has challenged whether the plaintiffs have
standing; that is, whether they are proper parties to bring suit.
64
He has
questioned whether the plaintiffs have a cause of action: that is, whether the
Constitution contemplates a judicial enforcement mechanism.
65
And closely
related, he has essentially argued that these cases present a “political ques-
tion” that is committed to the political branches, rather than the judiciary, to
answer.
66
Each of these doctrines by itself is complex, but they strike at the same
heart: whether the judiciary can enforce these clauses. This question begs
another: what is at stake if the judiciary cannot? For that is the conclusion
that follows from the President’s arguments taken together: if one of the
doctrines of general applicability bars the judiciary from hearing these cases,
or if neither states, nor Congress, nor private plaintiffs can invoke the power
of the judicial branch to curb Emoluments Clause violations by the Presi-
dent, perhaps no one can police the lines those clauses create.
67
To understand the consequences of the conclusion that no one can en-
force the clauses, we can look to the role the Foreign Emoluments Clause
played at the beginning of our history. From its inception, it has been an
information-forcing mechanism, bringing into the light exchanges that have
the potential for corrupting influence. Because the clause contains an excep-
tion allowing acceptance of foreign emoluments upon prior consent of Con-
gress, it forced our earliest statesmen to come forward and declare foreign
gifts for public evaluation. For example, under the Articles of Confederation,
when our emissaries to the courts of France and Spain were offered the cus-
tomary French gifts, they came forward to get the permission of their new
63
See Blumenthal v. Trump, No. 17-1154, 2018 WL 4681001 (D.D.C. Sept. 28, 2018).
Plaintiffs are more than two hundred U.S. Senators and members of the U.S. House of Repre-
sentatives, and their suit concerns only the Foreign Emoluments Clause.
64
See Statement of Points and Authorities in Support of Defendant’s Motion to Dismiss
at 5, Blumenthal, 2018 WL 4681001 (No. 17-1154) [hereinafter Motion to Dismiss, Blumen-
thal]; Memorandum in Support of Defendant’s Motion to Dismiss at 7, District of Columbia
v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018) (No. 17-1596) [hereinafter Motion to Dismiss,
District of Columbia]; Memorandum in Support of Defendant’s Motion to Dismiss at 7,
CREW, 276 F. Supp. 3d 174 (No. 17-458) [hereinafter Motion to Dismiss, CREW].
65
See Motion to Dismiss, Blumenthal, supra note 64, at 14; Motion to Dismiss, District of
Columbia, supra note 64, at 26; Motion to Dismiss, CREW, supra note 64, at 26.
66
See Motion to Dismiss, Blumenthal, supra note 64, at 2, 17; Motion to Dismiss, District
of Columbia, supra note 64, at 4; Motion to Dismiss, CREW, supra note 64, at 3, 50; but see
Defendant’s Reply in Support of Motion to Dismiss n. 7, District of Columbia, 315 F. Supp. 3d
875 (No. 17-1596) (“Finally, Plaintiffs argue that their claims should not be dismissed pursu-
ant to the political question doctrine. Opp’n at 54–55. The President, however, did not invoke
the doctrine; he merely argued that Congress’s consent power under the Foreign Emoluments
Clause and the inherently political nature of the judgments associated with the Clause are
another factor counseling against the Court inferring a cause of action in equity here.”).
67
Indeed, the judge in the suit brought by members of Congress found this suggestion
“troubling.” Zoe Tillman, Democrats Can’t Stop Trump In Congress, But They’re Hoping They
Can At Least Sue Him, B
UZZFEED
N
EWS
(June 7, 2018, 4:24PM), https://www.buzzfeednews
.com/article/zoetillman/trump-democrats-sue-emoluments [https://perma.cc/8Y7W-WSYB].
2019] Enforcing the Anti-Corruption Provisions of the Constitution 463
government to keep the gifts.
68
Many were approved, some were not; and all
were brought to light and scrutinized publicly by the legislative branch of
government to ensure that the American people knew the influences that
might be at work upon their government officials.
69
Thus, the clause ap-
peared to work as intended. But even in that era and among our central
Founders, efforts to thwart the clause happened. Most notably, Thomas Jef-
ferson, a critic of the tradition of gift-giving in Europe and aware that the
Constitution prevented acceptance of such gifts without consent of Con-
gress, nevertheless accepted a French snuff box when acting as a diplomat in
France, never declared it, and surreptitiously sold off expensive pieces of it to
pay down debts.
70
Congress could not approve a gift that the recipient re-
fused to put forward for approval, and so the clause could be, and was,
circumvented.
These divergent trajectories show the inadequacy of an unenforceable
clause. The clause is only as good as the disclosures that Congress gets. If a
President refuses to seek consent from Congress either for an otherwise un-
known emolument or for one that he or she refuses to admit is an emolu-
ment, Congress’s hands are functionally tied.
71
Indeed, a federal court has
found that a President who simply accepts emoluments as if consent had
been given when in fact it has not “completely nullifie[s]” the votes of mem-
bers of Congress.
72
And the harms the Founders sought to address
—
the
potential corruption of our public figures, and the erosion of trust between
the people and their government
—
are unredressable.
Not only is the clause weakened without an enforcement mechanism; it
is actively undermined. A President who wishes to receive emoluments and
68
See C
ORRUPTION IN
A
MERICA
, supra note 33, at 1–5, 22–26, 30. French snuff boxes
were received by Silas Deane, Arthur Lee, and Benjamin Franklin. Of them, Deane did not
ask for permission to keep the box, but disclosed it for other political reasons, and his accept-
ance of it cast doubt on his intentions and fealty to the United States in the minds of his
critics. In addition, John Jay wrote for and received permission to keep a horse from the king of
Spain.
69
Discussion on the floors of Congress the first time it was formally asked to consent to a
benefit bestowed by a foreign power in 1798 confirmed this understanding of the information-
forcing function of the Foreign Emoluments Clause. Representative Bayard, for instance, de-
clared that the Clause required officeholders “to make known to the world whatever presents
they might receive from foreign Courts, and to place themselves in such a situation as to make
it impossible for them to be unduly influenced by any such presents.” 5 A
NNALS OF
C
ONG
.
1583 (1798). Similarly, Representative Harrison Gray Otis argued that “[w]hen every present
to be received must be laid before Congress, no fear need be apprehended from the effects of
any such presents. For, it must be presumed, that the gentleman who makes the application
has done his duty, as he, at the moment he makes the application, comes before his country to
be judged.” 5 A
NNALS OF
C
ONG
. 1585 (1798). See also Complaint at para. 27–29, Blumenthal,
2018 WL 4681001 (No. 17-1154).
70
See C
ORRUPTION IN
A
MERICA
, supra note 33, at 28–30. Jefferson attempted to have
his assistant reject the gift with the explanation that the Foreign Emoluments Clause barred it.
When rejecting the gift proved difficult, he wrote that he did not wish to go through the
necessary process with Congress. Instead, in cypher and with a demand for secrecy, Jefferson
gave his assistant instructions on how to sell off pieces of the box.
71
See Complaint, supra note 69, at 19 para. 5 (arguing that members of Congress arguing
that they have been “denied . . . the opportunity to give or withhold their ‘Consent’”).
72
Blumenthal, 2018 WL 4681001, at *11.
464 Harvard Law & Policy Review [Vol. 13
who knows that Congress, his only regulator, is unable or unlikely to act
without being asked to do so, will simply never ask. Without an enforcement
structure through the judiciary, any officer who wishes to thwart the clause
could effectively do so.
73
A judicially unenforceable Foreign Emoluments
Clause thus fails to stop precisely the worst offenders of the Founders’ anti-
corruption principles.
To be sure, there exist rights without remedies in our legal scheme
—
places where conduct is not permitted, but the regulatory authority for that
conduct lies outside the judiciary, and thus outside of individual plaintiffs’
power to vindicate through the courts, even where the effects of that limita-
tion are perverse.
74
But the Emoluments Clauses present an issue far re-
moved from these circumstances.
This is not a circumstance where the Constitution commits the resolu-
tion of a conflict to the political branches.
75
For instance, some provisions
express “a textually demonstrable constitutional commitment of the issue to
a coordinate political department.”
76
To be sure, the Foreign Emoluments
Clause contemplates a specific role for Congress: the President and other
officials are prohibited from receiving emoluments and other gains “except
with the consent of Congress.” (The Domestic Emoluments Clause contains
no such exception.) But other such clauses exist in the Constitution, and
they have not been barriers to enforcement of those clauses by the courts.
77
Moreover, what a counterintuitive result, given the perverse consequences
described above: without judicial enforcement, the clause is flipped from an
information-forcing one with a robust role for Congress to an inducement to
those inclined to be receptive to influence to obfuscate or hide that influence
instead, thus leaving Congress impotent. Judicial enforcement respects,
rather than undermines, Congress’s role in the scheme.
73
Congress can exercise its role by giving consent in advance for receipt of a particular
emolument, thereby reiterating the prohibition on acceptance of others. It has done so for
certain categories, as with the Foreign Gifts and Decorations Act, 5 U.S.C § 7342 (2012),
which prevents federal employees from accepting any more than a de minimus “gift or decora-
tion” except under certain provisions. Even if Congress can give consent in advance, however,
that doesn’t mean it has to, or that there is any less of a burden on the officer to come forward
and seek consent where it hasn’t been given in advance. Without an enforcement mechanism,
that burden is flipped, and an “ask forgiveness, not permission” officer could rely on the unlike-
lihood of congressional action as a safeguard against the loss of a desired emolument. That is
not the way the Foreign Emoluments Clause was written. See Blumenthal, 2018 WL 4681001,
at *15; Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss, Blumenthal,
2018 WL 4681001 (No. 17-1154).
74
See infra notes 75–81 and accompanying text.
75
The President has suggested as much, though not going so far as to name the doctrine,
in the briefing in this case. See Motion to Dismiss, District of Columbia, supra note 64. See also
CREW v. Trump, 276 F. Supp. 3d 174, 193–94 (S.D.N.Y. 2017).
76
Zivitofsky v. Clinton, 566 U.S. 189, 195 (2012) (quoting Nixon v. United States, 506
U.S. 224, 228 (1993)).
77
See, e.g., Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 6 (2009) (finding that the
Tonnage Clause is judicially enforceable); Dep’t of Revenue v. James B. Beam Distilling Co.,
377 U.S. 341, 342–43 (1964) (finding that the Export-Import Clause is judicially enforceable);
Canton R.R. Co. v. Rogan, 340 U.S. 511, 513-14 (1951) (same); Brown v. Maryland, 25 U.S.
419, 421–22 (1827) (same).
2019] Enforcing the Anti-Corruption Provisions of the Constitution 465
Nor is this a circumstance where, as the President has argued, plaintiffs
cannot enforce a structural constitutional norm. The Emoluments Clauses
are not merely “good governance” provisions that are “intended to guard
generally against . . . corruption” and not to create individual rights.
78
On the
contrary, the structural principles of the Constitution like federalism and
separation of powers are, as the Supreme Court has explained, fundamen-
tally concerned with the individual liberties of all Americans.
79
As such, “[i]f
the constitutional structure of our Government . . . is compromised,” those
“who suffer otherwise justiciable injury may object.”
80
Indeed, this is the
principal way in which “judicial decisions” on “checks and balances” have
come about.
81
B. Why State Enforcement Makes Sense
States are particularly well situated to enforce the Foreign and Domes-
tic Emoluments Clauses given their historical interest in vindicating anti-
corruption principles and their unique and cognizable interests both in anti-
corruption in foreign policy and in their ability to participate appropriately in
the federal scheme.
The overarching concern for anti-corruption at the Founding came first
from state constitutions and declarations, expressing the notion that repub-
lics could stand only where public servants were dedicated to the public good
and guarding against corrupting influences. Maryland’s own Declaration of
Rights, adopted August 14, 1776, provides that “all persons invested with
the legislative or executive powers of government are trustees of the public.”
82
It also contains a precursor to the federal Constitution’s Emoluments
Clauses: “That no person ought to hold, at the same time, more than one
office of profit, nor ought any person, in public trust, to receive any present
from any foreign prince or state, or from the United States, or any of them,
without the approbation of this state.”
83
That same year, Virginia declared
“[t]hat no man, or set of men, are entitled to exclusive or separate emolu-
ments or privileges from the community, but in consideration of public ser-
78
Motion to Dismiss, District of Columbia, supra note 64.
79
See, e.g., Bond v. United States, 564 U.S. 211, 222 (2011) (“The limitations that feder-
alism entails are not therefore a matter of rights belonging only to the States. States are not the
sole intended beneficiaries of federalism. An individual has a direct interest in objecting to laws
that upset the constitutional balance between the National Government and the States when
the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidel-
ity to principles of federalism is not for the States alone to vindicate. . . . Separation-of-powers
principles are intended, in part, to protect each branch of government from incursion by the
others. Yet the dynamic between and among the branches is not the only object of the Consti-
tution’s concern. The structural principles secured by the separation of powers protect the
individual as well.”).
80
Id. at 223.
81
Id. at 222.
82
M
D
. D
ECLARATION OF
R
IGHTS
of 1776, art. IV.
83
Id. at art. XXXII.
466 Harvard Law & Policy Review [Vol. 13
vices.”
84
Pennsylvania similarly declared “[t]hat government is, or ought to
be, instituted for the common benefit, protection and security of the people,
nation, or community; and not for the particular emolument or advantage of
any single man, family, or set of men, who are a part only of that commu-
nity.”
85
These anti-corruption concerns were top of mind as the states en-
tered the union and a core concern as they submitted themselves to this new
federal government.
86
Violation of the Emoluments Clauses not only offends the states as
stewards of these anti-corruption principles but also as entities both specially
contemplated by the clauses and specially disadvantaged by their violation.
As the Supreme Court has recognized, governments may appeal to courts to
defend their “interest in securing observance of the terms under which [they]
participate[ ] in the federal system” and to protect the “benefits that are to
flow from participation in” that system.
87
There is no doubt but that one of
the important “terms” under which they participate is that their federal office
holders will not be corrupted by either foreign or domestic entities.
“[W]hen a State enters the Union, it surrenders certain sovereign pre-
rogatives,”
88
including the ability to treat with foreign states either by diplo-
macy or force. “Those prerogatives are now lodged with the Federal
Government,”
89
and the Constitution demands that that Federal Govern-
ment abide by the prohibition on office holders’ receipt of emoluments as a
way to prevent foreign corruption from entering into our political life. As
discussed above, this protection against corruption was one of the core con-
cerns of the states before entering the union and as they hammered out the
Constitution. Such concerns are ones that states “would likely attempt to
address through [their] sovereign lawmaking powers”
90
but no longer can.
Such interests, for which there is no longer a recourse in politics, are pre-
cisely the kind the Supreme Court has recognized as cognizable in the
courts.
91
States’ recourse to the courts is therefore crucial to ensure that their
84
V
A
. D
ECLARATION OF
R
IGHTS
of 1776, art. IV.
85
P
A
. D
ECLARATION OF
R
IGHTS
of 1776, art. V; see also N.H. C
ONST
. of 1784, art. X
(“Government being instituted for the common benefit, protection, and security, of the whole
community, and not for the private interest or emolument of any one man, family, or class of
men . . . .”); V
T
. C
ONST
. of 1793, ch. I, art. 7 (“That government is, or ought to be, instituted
for the common benefit, protection, and security of the people, nation, or community, and not
for the particular emolument or advantage of any single person, family, or set of persons, who
are a part only of that community . . . .”). These early texts also serve as proof that the people
drafting such documents in the Founding era considered “emolument” to cover a broad range
of benefits or advantages.
86
In addition to including these prohibitions in their declarations and constitutions, the
states actively hauled public figures into court for violating anti-corruption laws and provisions.
See, e.g., Jenifer v. Lord Proprietary, 1 H. & McH. 535 (Md. 1774); Respublica v. Burns, 1
Yeates 370 (Pa. 1794); Newell v. Commonwealth, 2 Va. 88 (Va. 1795).
87
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607–08 (1982).
88
Massachusetts v. EPA, 549 U.S. 497, 519 (2007).
89
Id.
90
Snapp, 458 U.S. at 607.
91
See Massachusetts, 549 U.S. at 520–21; Snapp, 458 U.S. at 607.
2019] Enforcing the Anti-Corruption Provisions of the Constitution 467
interests in preventing corruption and safeguarding responsive government
are vindicated.
Moreover, the Domestic Emoluments Clause specifically contemplates
the danger of domestic corruption to state and local governments and to the
“fundamental principle of equal sovereignty among the states.”
92
That clause
ensures that no state or federal instrumentality can curry favor with its finan-
cial clout, or by holding in play other benefits the President may want, such
as tax deals and permits; and conversely, that no state averse to such dealings
or without position to engage in them might be “discriminatorily denied”
their “rightful status” in the federal scheme.
93
The Constitution secures to
the District of Columbia, Maryland, and other domestic governments the
right to make their own political, policy, and budgetary decisions free from
the pressure to compete with others for the President’s favor or the risk of
disfavor. Again, it is precisely in these circumstances, where a state’s stand-
ing in the federal scheme is threatened, that the Supreme Court has found
States able to avail themselves of a judicial forum to vindicate these
privileges.
The District of Columbia and Maryland are uniquely situated with re-
spect to the President’s Emoluments Clause violations because being at or
near the seat of power means playing host to some of those very violations.
The Trump International Hotel, where foreign and domestic dignitaries stay
to be able to say “I love your new hotel!”
94
is visible from the District of
Columbia Attorney General’s office. Some government officials have can-
celled reservations at District hotels in favor of patronizing a Trump prop-
erty.
95
Our local economy is particularly affected, as the luxury hotel and
restaurant industry in our jurisdictions have to compete directly with a presi-
dential hotel that can support foreign and domestic government lobbyists.
And, conversely, our jurisdictions are particularly dependent on the federal
government for employment and spending because of our close physical
proximity to the White House. The District of Columbia and Maryland
rank first and fourth, respectively, when it comes to per capita federal gov-
ernment expenditures, and federal funds make up 25% and 30%, respec-
tively, of the District of Columbia and Maryland budgets for fiscal year
2018.
96
And the federal government employs approximately 17% and 10%,
92
Shelby County v. Holder, 570 U.S. 529, 544 (2013) (emphasis in the original) (internal
quotation marks omitted).
93
Snapp, 458 U.S. at 607–08.
94
Northam, supra note 7.
95
See, e.g., Kira Lerner & Judd Legum, Under political pressure, Kuwait cancels major event
at Four Seasons, switches to Trump’s D.C. hotel, T
HINK
P
ROGRESS
(Dec. 19, 2016, 10:05 PM),
https://thinkprogress.org/under-political-pressure-kuwait-cancels-major-event-at-four-sea-
sons-switches-to-trumps-d-c-1f204315d513/ [https://perma.cc/GV5V-6BR5].
96
U.S. C
ENSUS
B
UREAU
, C
ONSOLIDATED
F
EDERAL
F
UNDS
R
EPORT FOR
F
ISCAL
Y
EAR
2010 23, 32 (Sept. 2011), https://www.census.gov/prod/2011pubs/cffr-10.pdf [https://
perma.cc/XUJ8-Q5F3]; C
OMM
.
OF THE
W
HOLE
, C
OUNCIL OF THE
D.C., R
EPORT ON
B
ILL
22-241, T
HE
“F
ISCAL
Y
EAR
2018 F
EDERAL
P
ORTION
B
UDGET
R
EQUEST
A
CT OF
2017” 2
(May 2017), http://chairmanmendelson.com/wp-content/uploads/2017/05/B22-241-FY18-
Federal-Portion-BRA_draft-report-w-attachments.pdf [https://perma.cc/8W6J-HVZ5]; M
D
.
468 Harvard Law & Policy Review [Vol. 13
respectively, of the jurisdictions’ total workforce.
97
Thus, the dilemma that
the Domestic Emoluments Clause seeks to prevent
—
that of acquiescing to
pressure to feed a hungry executive, or risk disfavor by the federal govern-
ment
—
is particularly acute for our jurisdictions.
98
Other plaintiffs have set forth other theories for why they are proper
parties to advance these interests in court, and litigation is ongoing.
99
The
stakes are high. The Founders wrote the Emoluments Clauses into the Con-
stitution out of a real and present fear that corruption would be one of the
greatest threats to their young union. They meant for the clauses to be effec-
tive as against the dangers that they saw. As our office has successfully ar-
gued, the District of Columbia and Maryland are proper parties to sue.
100
C
ONCLUSION
President Trump’s vast business entanglements shake our democracy at
its core, both by opening our government up to undue influence and by
corroding its legitimacy. These are threats anticipated by our Founders and
provided for in the Emoluments Clauses of the Constitution. They are
threats that have been guarded against for decades by government ethics
officials applying those clauses so as to effectuate their purpose. They are
threats that can be meaningfully dealt with only by recourse to the courts.
We believe that President Trump’s receipt of foreign and domestic benefits
through his vast business empire is unconstitutional. We also believe that, as
with so many other arenas in which state attorneys general have stood up for
the rule of law, our jurisdictions are proper parties to bring these violations
before the judiciary for resolution. A federal judge has agreed. As George
Mason put it, “if we do not provide against corruption, our government will
D
EP
’
T OF
L
EGISLATIVE
S
ERVS
., M
D
. G
EN
. A
SSEMBLY
, T
HE
90 D
AY
R
EPORT
: A R
EVIEW OF
THE
2017 L
EGISLATIVE
S
ESSION
A-28 (Apr. 2017), http://mgaleg.maryland.gov/Pubs/Legis-
Legal/2017rs-90-day-report.pdf [https://perma.cc/NM5S-HVZ8].
97
Data, Analysis & Documentation: Federal Employment Reports, O
FFICE OF
P
ERS
.
M
GMT
. (Sept. 2017), https://www.opm.gov/policy-data-oversight/data-analysis-documenta-
tion/federal-employment-reports/reports-publications/federal-civilian-employment/ [https://
perma.cc/UC4Y-PDXX]; D.C. D
EP
’
T OF
E
MP
’
T
S
ERVS
., W
AGE AND
S
ALARY
E
MPLOYMENT
BY
I
NDUSTRY AND
P
LACE OF
W
ORK
(Dec. 2015), https://does.dc.gov/sites/default/files/dc/
sites/does/release_content/attachments/CESdcDec15.pdf [https://perma.cc/63BW-7KV4];
John Fritze, Trump’s budget suggests major changes in Md., B
ALT
. S
UN
(Mar. 16, 2017, 8:09
PM), http://www.baltimoresun.com/news/maryland/politics/bs-md-trump-budget-20170316-
story.html [https://perma.cc/4UZ7-T6F6].
98
In our lawsuit, a federal judge has also agreed that we have standing pursuant to both
our proprietary interests
—
that is, injuries to our own instrumentalities, such as the Walter E.
Washington Convention Center, and to our direct financial interests, such as Maryland’s in-
terest in the Bethesda Marriott Conference Center, which compete against the Trump Ho-
tel
—
and as parens patriae to our residents. See District of Columbia v. Trump, 291 F. Supp. 3d
725, 742–48, 757 (D. Md. 2018).
99
See supra notes 62–63.
100
See District of Columbia, 291 F. Supp. 3d at 746–47 (also noting that no other general
justiciability concern bars our suit).
2019] Enforcing the Anti-Corruption Provisions of the Constitution 469
soon be at an end.”
101
The President must be held accountable to his duty to
the American people, and not to his own bottom line.
101
Notes of Robert Yates (June 23, 1787), in 1 T
HE
R
ECORDS OF THE
F
EDERAL
C
ON-
VENTION OF
1787, at 391–92 (Max Farrand ed., rev. ed. 1966); see also Notes of James
Madison (June 23, 1787), in 1 T
HE
R
ECORDS OF THE
F
EDERAL
C
ONVENTION OF
1787, at
385, 387.
