By Jay Wexler

Photo credit: Glyn Lowe Photoworks.

As someone who has written a book about the “odd clauses” of the Constitution, I always find it exciting when some weird and heretofore unnoticed clause starts grabbing some of the nation’s headlines. This time it’s the so-called Emoluments Clause of Article I, Section 9 (I think it should be called the “Presents Clause,” but I’ll get to that), which prohibits anyone holding “any Office of Profit or Trust” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The news media has been reporting for well over a month that Donald Trump’s extensive business network puts him in danger of violating this clause; and on Monday a group of extremely prominent legal experts filed suit in federal court claiming that Trump has already violated this constitutional provision.

One of the recurring arguments that has popped up in Trump’s defense has been what I term the “fair market value” defense—namely, that if a foreign state pays market value for a good or service provided by the Trump empire, then it is not in fact providing Trump with a “present” or an “emolument.” For example, if a foreign dignitary stays for a night in a Trump hotel and pays the market rate for the room, then how can that really be a constitutional problem? The Morgan, Lewis “White Paper”, written by lawyers working for Trump, for example, argues that “the Constitution does not forbid fair-market-value transactions with foreign officials.” And Professor Andy Grewal, writing for the Yale Journal on Regulation blog, contends that: “[T]hough a precise, universal definition of gift may remain elusive, that term does not include the purchase of a good or service at the market price. In fact, a quid pro quo market exchange is the precise opposite of a gift transaction.”

I think the “fair market value” defense misses the point. Of course, if it were the case that a foreign state paid above-market-value for a room in the Trump hotel or for a thick juicy Trump steak, that would be a clear instance of the foreign state offering the president a gift. But in my view, even a fair-market-value transaction can equally violate the Constitution. The problem is not just that a foreign state may give Trump money for his goods or services, but that Trump’s extensive business network raises the extremely real risk that a foreign state may choose to purchase a Trump good or service in a competitive market despite the fact that what Trump is offering might not be as high quality or value as his competition, for the express purpose of courting Trump’s favor and obtaining reciprocal treatment from the president.

Take a simple example. Imagine that the Chinese government is planning a large and elaborate state dinner. The planners want to serve a delicious sparkling wine with the scallop appetizer. Obviously they have hundreds of possibilities to choose from. France makes some really great sparkling wine, you know! But because they would like to get on Trump’s good side—or, perhaps more appropriately, avoid getting on his bad side (“China chooses French Wine,” Trump might tweet. “So overrated. So sad!!!”)—they decide to buy one thousand bottles of 2010 Trump Blanc de Blanc, with its “green apple nose” and “citrus notes on the mouth” at $34 per bottle. That’s $34,000 for Trump. Now, I admit to never trying a glass of Trump Blanc de Blanc, even though I know it pairs well with “mild cheeses,” so perhaps it is the best wine in the entire world for its price. Let’s assume, however, that it’s not, and that were Trump not the President of the United States and the most powerful person in the entire world, the Chinese government would have chosen some other wine. Isn’t the decision to go with Trump wine basically a present to Trump? I think it is.

(That’s why I’m saying the clause should be called the “Present Clause.”)

Okay, you’re saying, maybe this is not such a big deal. A little wine, so what? Well, there are a few answers to this. One is the text of the Presents Clause, which is about as categorical an exclusion as one can find in the Constitution. There are not one but two “any”s in there, and then, for further emphasis, a “whatever”! Martin Van Buren wouldn’t accept a couple of horses and some rosewater from a foreign imam without Congressional approval because of the clause. And of course, we all know that Trump favors a strict construction of the Constitution. 

The most important answer to the objection, however, is that we’re not just talking about a little wine. As the complaint filed Monday lays out in great detail, Trump’s business interests are enormously extensive and reach all over the world, from China to India to Russia (Russia!) to Scotland and Indonesia. Every time a foreign government decides to favor a Trump business instead of a similarly situated non-Trump business, whether it is buying a bottle of Trump wine or hosting a Hanukkah party at a Trump hotel (as Azerbaijan did in 2016, according to the complaint) or expediting a trademark application or an operating permit or whatever, it’s giving Trump a present. And that raises the very real possibility that our president may reciprocate by giving the foreign government a gift of his own—a gift that has nothing to do with governing in the public interest and everything to do with rewarding those who have courted his favor.

About the Author 

Jay Wexler is a professor at the Boston University School of Law, where he has taught environmental law and church-state law since 2001. He is the author of three previous books, including Holy Hullabaloos, The Odd Clauses,and When God Isn’t Green. Follow him on Twitter at @SCOTUSHUMOR and visit his website.