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Here’s a hypothetical scenario giving some ethics watchdogs heartburn: A foreign dignitary visits Washington, D.C., on government business and decides to stay at the Trump International Hotel. He or she might choose to stay there because of its amenities, its convenient location four blocks from the White House, or to build up goodwill with the president who owns the hotel.
If his hotel accepts the foreign government’s bill payment for the dignitary’s stay, some critics argue Donald Trump would, as president, be in violation of the Constitution’s provision to block foreign influence. The emoluments clause says that no officer of the United States can accept gifts, titles or emoluments (salary) from a foreign government, without permission from Congress.
But lawyers for Trump say that the critics are mistaken, because this clause doesn’t apply to fair-value exchanges, such as paying standard market rates for a hotel room.
"These people are wrong," said Morgan Lewis & Bockius partner Sheri Dillon at a Jan. 11 press conference. "This is not what the Constitution says. Paying for a hotel room is not a gift or a present and it has nothing to do with an office. It's not an emolument."
Despite this position, Dillon said Trump’s company would donate to the U.S. Treasury any profits earned from foreign governments through his business, to avoid even the appearance of impropriety. And his company will also refrain from engaging in any new deals with foreign governments while Trump is president.
But given the backlash about Dillon’s interpretation of the emoluments clause from some legal commentators, we decided to fact-check her claim that fair-value exchanges — like paying a hotel bill — are not emoluments.
The answer we found isn’t very satisfying: Some legal scholars say Dillon has a point, others say she doesn’t.
The emoluments clause hasn’t come before the courts in any meaningful way, so there aren’t any past judicial rulings to look at for guidance about the scope of the emoluments clause. Whether the clause even applies to the president remains an unsettled legal question.
"Anything anyone tells you about the emoluments clause is a matter of opinion," said Seth Barrett Tillman, a professor at Maynooth University in Ireland who has studied the clause.
Before we go any further, here’s the full text of the emoluments clause, found in Article I, Section 9 of the Constitution:
"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."
What that means is someone holding a government position cannot take an emolument, meaning payment or salary, from a foreign government. A clear example of an emolument would be if a government employee made a decision favorable to a foreign country and, in exchange, a representative of that country’s government gave the American employee a check.
Dillon’s law firm explained in a Jan. 10 white paper why they believe this clause doesn’t ban, say, a foreign government paying a fair rate to stay in a hotel owned by a government worker.
The authors of the Morgan, Lewis & Bockius white paper wrote that the Constitution’s authors understood the term "emoluments" to mean "a payment or other benefit received as a consequence of discharging the duties of an office." So paying a hotel to offer standard hotel services is not an emolument because the service provided is not associated with the office of a president.
They also wrote that in the early 1800s, the country nearly amended the Constitution to extend the emoluments clause to all citizens, not just federal office holders. They did not see evidence that anyone thought that extending the clause’s reach would inhibit citizens’ ability to engage in fair commerce with foreign governments or their representatives.
Tillman said he largely agrees with the Morgan, Lewis & Bockius white paper — especially because the money would be flowing into the Trump Organization, not Trump’s pockets directly.
"The concern is related to the concept of office," he said. "It’s not about business deals like staying in hotels when the price is fixed."
That, however, is far from the final word. Several legal scholars wrote in a Brookings memo that they read the emoluments clause as applying to fair-value exchanges.
The clause is intended to block any arrangement with a foreign state that could result in a profit or benefit for the officeholder because it carries the risk of "improper foreign influence," as the officeholder’s legitimate business interests would depend, at least in part, on the foreign state, the authors wrote. They are Norman L. Eisen, chief White House ethics lawyer under Barack Obama, Richard Painter, chief White House ethics lawyer under George W. Bush, and Laurence Tribe, a law professor at Harvard University.
The historical evidence shows, they argue, that the drafters of the Constitution wanted the emoluments clause to be broad in scope, in order to limit even the possibility of corruption. For example, the phrasing in the clause specifically refers to emoluments "of any kind whatever."
"Wholly apart from any actual quid pro quo arrangements or demonstrable bribes or payoffs, the emoluments clause will be violated whenever a foreign diplomat stays in a Trump hotel or hosts a reception in one," they wrote.
Despite their position, Eisen, Painter and Tribe note that "there is not yet a firm consensus on this point."
All of this discussion assumes that Trump, as president, would be subject to the emoluments clause. But that’s still not a certainty, and there is evidence, both modern and from the time of the Constitution’s ratification, that supports either side.
We should note that hotel stays are not the only way representatives of foreign states interact with Trump’s business. He has worked with foreign governments to do business in around 20 countries. The Bank of China is a tenant in Trump Tower in Manhattan.
Depending on how his plans to separate himself from his business play out, these dealings could present, if not a violation of the emoluments clause, a serious conflict of interest.
Dillon, a lawyer for Trump, said under the Constitution, "Paying for a hotel room is not a gift or a present and it has nothing to do with an office. It's not an emolument."
Whether the emoluments clause would include a situation where representatives of a foreign state paid for a room in one of Trump’s hotels is an unanswered legal question. We encountered reasonable arguments on both sides, and there isn’t any judicial precedent to guide us to the right answer.
Maybe this question will get answered in a meaningful way during the Trump administration. But for now, we rate the statement Half True.
New York Times, "Donald Trump’s News Conference: Full Transcript and Video," Jan. 11, 2017
National Constitution Center, The Constitution pdf, accessed Jan. 12, 2017
Morgan, Lewis & Bockius, "Conflicts of Interest and the President," Jan. 10, 2017
Brookings, "The emoluments clause: its text, meaning and application to Donald J. Trump," Dec. 16, 2016
Bloomberg, "Trump's Hotel Lodges a Constitutional Problem," Nov. 21, 2016
New Yorker, "Will Trump avoid a constitutional crisis?" Jan. 11, 2017
PolitiFact, "Giuliani: President Trump will be exempt from conflict-of-interest laws," Nov. 16, 2016
Washington Post, "Fact-checking what Donald Trump’s lawyer said about the president-elect’s finances," Jan. 12, 2017
Washington Post, "For foreign diplomats, Trump hotel is place to be," Nov. 18, 2016
Interview, Maynooth University professor Seth Barrett Tillman, Jan. 12, 2017
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