Business Transactions and President Trump's 'Emoluments' Problem

Recently, some have argued (1) that the term "emoluments," as used in the Constitution's Foreign Emoluments Clause (2) and Presidential Emoluments Clause, (3) reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. (4) There is good reason to doubt the correctness of this position. Why? The Presidential Emoluments Clause states: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. (5) If the emoluments-are-any-pecuniary-advantage position were correct, if "emoluments" as used in the Constitution extended to any pecuniary advantage, then presidents are and would have been precluded from doing business with the United States government. However, George Washington, who had presided over the Philadelphia Convention, (6) did business with the Federal Government on more than one occasion while he was president. He purchased several lots of land in the new federal capital at public auction. One such set of purchases took place on or about September 18, 1793. (7) The public auction was run by three commissioners: David Stuart, Daniel Carroll, and Thomas Johnson. Who were they? David Stuart was a member of the Virginia convention that ratified the Federal Constitution. Stuart was also a federal elector in the first federal election for President and Vice President of the United States. (8) Daniel Carroll was a member of the Federal Convention that drafted the Constitution and later a member of the First Congress. (9) Thomas Johnson was the first Governor of Maryland following independence, a member of the Maryland convention that ratified the Federal Constitution, and afterwards he served as a Justice of the Supreme Court of the United States. (10) So among the four participants (Washington and the three commissioners) were: three members of the Continental Congress; (11) three members of pre-independence colonial legislatures or post-independence state legislatures; (12) two members of state conventions that ratified the Constitution; two members of the Federal Convention (including the Convention's president); a member of the First Congress; a Justice of the Supreme Court of the United States; a governor; a federal elector for President and Vice President; and, our first President. Collectively these four are, undoubtedly, an accomplished group. Are we really to believe that not only did all four officials willingly, openly, and notoriously participate in a conspiracy to aid and abet the President in violating the Constitution's Presidential Emoluments Clause, but that they also left--for themselves and their posterity--a complete and signed documentary trail of their wrongdoing? (13) The emoluments-are-any-pecuniary-advantage position amounts to: (1) President Washington was at best grossly negligent, if not crooked; (2) Washington's allies openly supported obvious and profound constitutional lawlessness; and (3) Washington's political opponents were altogether and unaccountably silent--silent in Congress, (14) silent in newspapers, and silent even in their private correspondence. The emoluments-are-any-pecuniary-advantage position amounts to a naked assertion by twenty-first century legal academics (15) that they understand the Constitution's binding legal meaning better than those who drafted it, ratified it, and put it into effect during the Washington administration. The alternative view is that linguistic and historical humility compel reasonable minds to recognize that much of the language within our more than two century-old Constitution is opaque. It follows that--in order for twenty-first century citizens to understand what the Constitution's opaque language meant when ratified (and what it continues to mean today) in regard to a specific (but otherwise obscure) legal term, namely, "emoluments"--reasonable persons must look to the actual conduct of the Framers, the Ratifiers, and the original practice of the three branches when they were squarely confronted with the need to determine the meaning of a particular legal term on concrete facts. …