Don Franzen Talks with Erwin Chemerinsky on Trump and Emoluments

August 8, 2018   •   By Don Franzen

EDITOR’S NOTE: Among the myriad of legal troubles plaguing President Trump are three lawsuits brought by a citizens group, the District of Columbia and the State of Maryland, and members of Congress, all alleging that President Trump is in violation of the Constitution’s Emoluments Clauses. These obscure provisions of the Constitution provide basically that the president is not permitted to accept any “emoluments” from a foreign power without congressional approval, nor accept any “emoluments” other than his or her salary as president from any state or the United States (known, respectively, as the “Foreignand “DomesticEmoluments Clauses). A frequent contributor to the Los Angeles Review of Books, Erwin Chemerinsky, currently dean of the Berkeley School of Law, has been among the leading constitutional scholars advancing the position that President Trump’s wide-ranging commercial interests, foreign and domestic, run afoul of these constitutional provisions. In the entire history of the American Republic, this has never come up before, and hence the word “emolument” never given judicial interpretation — until just recently, on July 25, when a federal district court in Maryland concluded the case against President Trump could go forward. Professor Chemerinsky recently spoke with me regarding the Maryland and other pending emoluments cases, and what the future may hold for this president as they work their way through the courts.


DON FRANZEN: Professor Chemerinsky, it was back in January 2017 you and I spoke about the subject of the Emoluments Clauses in the United States Constitution. Here we are in July 2018 and now just recently on July 25 we have a rather important decision that came out of a district court in Maryland where Judge Peter Messitte found that a cause of action had been stated by the District of Columbia and the State of Maryland against President Trump for potential violations of the Emoluments Clauses of the United States Constitution. What are the two relevant clauses?

ERWIN CHEMERINSKY: Article One, Section Nine says that no person who holds a position of trust in the federal government can receive any emoluments or presents from a foreign government. Article Two, Section One says that the president cannot receive any emoluments for serving in office other than the salary that’s paid for the position. In both of these contexts, emoluments means benefits. The former clause was meant to keep the fledgling nation from being subjected to undue influence by foreign countries. The latter was meant to keep the president from using the office to benefit himself or herself.

There were several cases filed right after President Trump took the oath of office. What is the status of each of those cases at this time?

Actually, there are three cases. One was filed by a public interest organization, Citizens for Responsibility and Ethics in Washington. It’s also been amended to include claims on behalf of hotel and restaurant workers. A federal district court in New York, Judge George Daniels, dismissed this case saying the plaintiffs hadn’t shown the requisite personal injury and that it poses a political question. That case is now on appeal to the United States Court of Appeals for the Second Circuit. A second case was filed by the Attorneys General of Maryland and the District of Columbia. They said on behalf of their jurisdictions that those areas were hurt by President Trump violating the Emoluments Clause. The judge initially denied the president’s motion to dismiss on the grounds of standing. And then, last week, the judge said that the complaint does state a claim upon which relief can be granted. The judge thus dismissed the president’s motion to dismiss the case. There's also another suit that’s still pending by over 200 members of Congress, and they focus on the former Emoluments Clause that says that no one with a position of trust in the federal government can receive any emoluments or presents from a foreign government without the permission of Congress. Congress has not approved this. That case is pending in federal district court in Washington.

Judge Messitte, the judge in Maryland, ruled last week as follows (and I’m quoting):

Plaintiffs have convincingly argued that the term “emolument” in both the Foreign and Domestic Emoluments Clauses […] means any “profit,” “gain,” or “advantage.” and that accordingly they have stated claims to the effect that the President, in certain instances, has violated both the Foreign and Domestic Clauses.

That’s a pretty momentous decision. It seems to all turn on: “What is an emolument?”

The judge says, which I think is absolutely right, “emoluments” means a “benefit.” The Foreign Emoluments Clause is meant to say the president should not receive benefits from a foreign government. The Domestic Emoluments Clause says a president should not receive benefits from the federal government other than the salary paid for the office.

This opinion, which is 52 pages long, is a treatise on the meaning of the word “emolument” back in the 18th century when the Constitution was drafted. It struck me as a very Originalist opinion in its approach and analysis.

I agree. I think here the problem is that most people aren’t familiar with the word “emoluments.” I think up until Trump was inaugurated, most people thought of emoluments as some form of skin cream! These are words in the Constitution that have not been interpreted. The judge tried to go back and figure out what did the word “emoluments” mean in the 18th century when the Constitution was written, and he said it means “benefits.”

I see a lot of discussion in the opinion about Doctor Johnson’s dictionary, and which dictionaries were available in the Colonies at the time, and how Blackstone used “emoluments” in his commentaries on the Common Law, and so on and so forth. It’s really a bit of etymological history that the judge goes through to reach his conclusion. That makes me wonder, perhaps politically some Originalist judges might not be happy with this decision in terms of an outcome, but can this really be criticized from an Originalist perspective?

I think from an Originalist perspective, the judge is absolutely right. Having done a great deal of research on this, I think emoluments means just as the judge defined it: benefits. I would hope, and it may be a naïve hope, that future courts — the Court of Appeals, the Supreme Court — won’t look at this through partisan lenses. The Constitution prohibits the president from receiving emoluments from foreign governments and from receiving emoluments other than a salary for office. Unless these constitutional provisions are enforced, they’re made meaningless. No one, not even the president, is above the law, and I think that’s why the judge’s decision last week is so important.

What are the emoluments that these lawsuits allege Mr. Trump is benefiting from?

It’s a large list of different things. It can include, with regard to foreign governments, when China gave to Donald Trump licenses of a whole lot of trademarks. Something he’d been seeking for years, and then received. Perhaps coincidentally, or maybe not, he then changed his China policy in a way much more favorable to China. It includes all of the times that foreign governments stay at Trump hotels, when previously they would’ve stayed at the Marriott or the Hyatt or other places. It involves, in terms of the Domestic Emoluments Clause, all the times in which the federal government is doing business with Trump properties and it benefits Trump. There’s an office building in New York where there’s an entire floor that federal government occupies. They’re paying rent to Donald Trump. We know all the times when Trump stays in his own property that the federal government is receiving money for the security and other dignitaries to stay there. That too is the president impermissibly benefiting and benefiting greatly from his office. Keep in mind why the decision last week is so important. Now there will be discovery, and discovery means that the plaintiffs will be able to obtain information about Donald Trump’s assets. How else will we know he’s benefiting from foreign governments? I think this provides the best vehicle so far of getting access to his tax returns.

What could the potential remedies be if the court finally determines that the Emoluments Clauses have actually been violated?

Assume that any of these cases gets down the line and the plaintiffs win. What’s the remedy? Well, one remedy is simply a declaratory judgment. A declaration that the president is violating the Constitution. That could be important in itself. Another possibility is to order that President Trump divest himself from these financial interests. It’s not as if these are new constitutional provisions that were added recently. Donald Trump had to know when he ran for president that these provisions were there and a court could say, “If you want to stay president you can’t own these assets whereby you personally benefit from foreign governments or from the United States government.”

What about the possibility that he could seek congressional approval?

One of the Emoluments Clauses can be overridden. The Foreign Emoluments Clause explicitly says that no one who holds a position of trust with the federal government can receive any emolument from a foreign government without congressional approval, but the Domestic Emoluments Clause is different in that it doesn’t matter if Congress approves. It simply says the president shall be paid a compensation for his or her services, a compensation that will neither be increased or decreased during the period in office and within that period the president shall not receive any other emoluments from the United States or any of them. Congressional approval won’t excuse a violation of the Domestic Emoluments Clause.

What is going to happen next? Would you expect some kind of interlocutory appeal by the president to halt this case from going forward into full discovery?

The Justice Department has said that they might ask the United States Court of Appeals for the Fourth Circuit to intercede and stop this from going forward. That would be extraordinary. There's such a strong presumption in federal court that the appellate process doesn’t begin until the trial process is over. Assuming that the Fourth Circuit doesn’t get involved and the Supreme Court doesn’t get involved — in the traditional rule they shouldn’t — it then goes back to Federal District Court and what happens next is discovery. The plaintiffs being able to obtain the information that they think is necessary to prove their case. That would include having access to Donald Trump’s tax records.

It’s taken up to a year and a half to get up to this point in the Emoluments Clause cases. What are the chances we will see this resolved before Mr. Trump’s first term as president is up?

That’s a great question. Litigation moves slowly, no one seems to feel urgency with regard to this. To me, what’s troubling about that is the allegations of the complaints in all three of these cases that President Trump is violating the United States Constitution literally every day. You raised the question, is it likely that this will get to the Supreme Court to stop the president by the end of his presidency? I don’t know.


Don Franzen is an entertainment lawyer based in Beverly Hills. He is also an adjunct professor at UCLA’s Herb Alpert School of Music teaching on the law and the music industry and the Legal Affairs editor for LARB.