Currently, there is much to do about the Emoluments Clause and the possibility that President Donald Trump’s business deals over seas would cause him to violate the clause. In a lawsuit, liberal activists argue that Trump is connected to businesses that receive payments for services from those who are connected to foreign governments.

In his Commentaries on the Constitution, Supreme Court Justice Joseph Story briefly discusses the issue. However, when you examine the text of the clause according to his analysis, it becomes clear that the clause does not apply to business interests or to any situation that the president is currently involved in.

The clause is part of the “Title of Nobility Clause” found in Article 1, Section 9, Clause 8 of the United States 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.”

Bouvier’s Law Dictionary, a highly influence and respected dictionary published in 1839, defines “emoluments” as: “The lawful gain or profit which arises from an office.”

By definition, an emolument is the pay received from holding a job. Story writes, “The other clause, as to the acceptance of any emoluments, title, or office, from foreign governments, is founded in a just jealousy of foreign influence of every sort. Whether, in a practical sense, it can produce much effect, has been thought doubtful. A patriot will not be likely to be seduced from his duties to his country by the acceptance of any title, or present, from a foreign power. An intriguing, or corrupt agent, will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions.”

The emphasis is on a prohibition of politicians and bureaucrats serving in the employ of a foreign nation. Story goes on to argue, “Still, however, the provision is highly important, as it puts it out of the power of any officer of the government to wear borrowed honours, which shall enhance his supposed importance abroad by a titular dignity at home. It is singular, that there should not have been for the same object, a general prohibition against any citizen whatever, whether in private or public life, accepting any foreign title of nobility. An amendment for this purpose has been recommended by congress; but, as yet, it has not received the ratification of the constitutional number of states to make it obligatory, probably from a growing sense, that it is wholly unnecessary.”

In his notes, Story refers back to William Rawle’s influential A View of the Constitution. Rawle argues that the clause was to prevent officials from being bribed to hurt their nation, but, his’s view, “The clause in the text is defective in not providing a specific penalty for a breach of it.”

Story also refers to Tucker’s Blackstone Commentaries, which claims, “Nothing can be more dangerous to any state, than influence from without, because it must be invariably bottomed upon corruption within. Presents, pensions, titles and offices are alluring things. In the reign of Charles the second of England, that prince, and almost all 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.”

These works all emphasize the nature of receiving presents and pay from government officials for the sole reason of providing presents or putting an official on their payroll. At no time do they discuss presidents having connections to private companies with trade deals over seas. Having a company accept just compensation for the sale of a product is not a gift or a salary issued by a foreign nation, even if a particular official from a foreign nation or government entity paid for that product.

Furthermore, having foreign officials make a purchase with a business that then provides compensation for an official is not an emolument in the traditional sense. Without direct control over the original payments and without receiving the payments as direct compensation, an official would not be in violation of the Emoluments Clause. The clause is very specific with the direct nature of the items or payments received.

However, even if the Supreme Court decided that such payments could be considered as violating the Emoluments Clause, Congress can pass a rule regulating the specific matter.

Andrew Jackson, in a January 6, 1834 letter to Congress, stressed the nature of these payments being presents or gifts:

The provision of the Constitution which forbids any officer, without the consent of Congress, to accept any present from any foreign power may be considered as having been satisfied by the surrender of the articles to the Government, and they might now be disposed of by Congress to those for whom they were originally intended, or to their heirs, with obvious propriety in both cases, and in the latter would be received as grateful memorials of the surrender of the present.

It was President Jackson’s prerogative to deny his officials from accepting any gifts, but he also stressed that those that Congress received previously be distributed to those for whom they were intended:

As under the positive order now given similar presents can not hereafter be received, even for the purpose of being placed at the disposal of the Government, I recommend to Congress to authorize by law that the articles already in the Department of State shall be delivered to the persons to whom they were originally presented, if living, and to the heirs of such as many have died.

Other presidents have taken different positions, with President William McKinley allowing his Secretary of War William Howard Taft to accept a rug that was given to him by the Japanese government. We discussed that issue before, and we discussed those who outright fabricate information related to the history of the Emoluments Clause to push a fringe political agenda.

The last time this became a major issue was in 1942, when Congress allowed those serving in World War 2 to accept medals or other honors given to them by the Allied Nations. In particular, future president Dwight D Eisenhower was made a Knight of the Order of the Elephant by Denmark due to his service in the war.

The current list of goods authorized for officials to receive can be found in 5 U.S. Code § 7342 – Receipt and disposition of foreign gifts and decorations. The emphasis in the Federal law is on “gifts,” because payments for due services rendered through corporations that one is affiliated with cannot be considered a gift.

When it comes to direct funding, 22 U.S. Code § 2458a – Federal employee participation in cultural exchange programs provides a lot of information. Often, items falling under this law would be direct funds provided by a government for a particular service. They would be a payment to an individual or funding an individual directly, and not to a corporation paying for a specific product.

A president with financial connections to a corporation in which foreign nations might have dealings is not different from every Congressman who owns stock in a multinational corporation. There are laws regulating the use of information and other conflict of interest related matters, but they are not considered as falling under the Emoluments Clause.

Congress, as with the early experts, has determined that the threat is due to direct gifts or payments that could influence policy in an undue manner. They allowed for honors and small gifts to encourage services of various kind, because the is little to believe that these items are corrupting. Neither legislators nor early theorists argued that an indirect payment for a product to an intermediary could create an undue influence.

It is possible for a president or an elected official to violate the Emoluments Clause if they were to accept funds from foreign nations through a small business or family charity that directly involves that individual and exists only as a vehicle to accept such payments. In such a situation, direct payments connected to legislative or official actions are a threat to the Constitutional security of the nation.