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The President and the Purposes of the Foreign Emoluments Clause (Part III): Presents and Emoluments

We may now turn to the question of whether the Framers might have had reason to exclude the president from the Foreign Emoluments Clause’s presumptive ban on accepting any “present” or “emolument” from a foreign power. Here we should start with an important distinction. I am not claiming that the exclusion of the president from the FEC would be an absurd result in the sense that it would justify departing from the plain meaning of the Constitution. Compare United States v. Kirby, 74 U.S. 482, 487 (1868) (classic example of the absurd results doctrine is the law “’that whoever drew blood in the streets should be punished with the utmost severity’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit”). If the plain meaning of the FEC excludes the president, I am satisfied that Professor Grewal’s explanation (discussed in my original post on this topic) would be sufficient to forestall operation of the absurd results doctrine.

If, however, the question is whether the meaning of the FEC is plain or, if plain, what that meaning is, then I think Professor Grewal falls short of offering a persuasive reason why the Framers might have decided not to restrict the president’s acceptance of foreign presents or emoluments. Grewal suggests first that the Framers’ concerns about foreign gifts and payments may have centered on appointed officers because only officers “like ambassadors . . . would make the type of extended visits abroad that could subject them to improper foreign influence.” Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, *7 (forthcoming 2017).

At the outset, there is something less than a tight fit between this hypothesis and the language used in the FEC. After all, the Clause applies to all persons who hold any office of profit or trust under the United States. This language is not limited to officials likely to make extended trips abroad, but includes many officers with a largely or exclusively domestic focus (such as the Secretary of the Treasury and subordinate officials responsible for the public fisc, the Chief Coiner and other officers of the Mint, the Attorney General and district attorneys, postmasters and other officials involved in the postal system, and the entire federal judiciary, among others). If the Framers had wanted to limit the FEC to diplomatic officials likely to spend significant time abroad, they could have employed the language used elsewhere in the Constitution (“ambassadors, other public Ministers and Consuls”) to refer to such officials.

Common sense also suggests that foreign powers would have ample opportunity, and even greater motive, to offer the president gifts and payments (both of the somewhat above-board ceremonial kind or of the less savory surreptitious kind). For example, the president is charged by Article II with receiving ambassadors and other pubic ministers from foreign nations. See U.S. const., art. II, § 2. As the official ultimately responsible for the conduct of U.S. foreign policy, the president would certainly be expected to meet and correspond directly with foreign dignitaries, including heads of state, on a regular basis. Thus, the Framers would hardly have been surprised that U.S. presidents, beginning with George Washington, have been offered or received gifts from foreign governments or dignitaries. See, e.g., Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause, 107 Nw. L. Rev. 180, 188-90 (2013) (citing examples).

It is true that U.S. ambassadors and other diplomatic officials were a particular concern of the FEC, due in large part to the European custom of giving gifts, sometimes of significant value, to visiting foreign diplomats. Because it was often diplomatically awkward to refuse such gifts, this is also likely why it was thought impractical to have an absolute ban on accepting them. See Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution *40 (Feb. 5, 2017).

I am aware, however, of no evidence to suggest that the Framers were concerned exclusively with potential foreign corruption of diplomats or other officials who would be abroad for long periods. To the contrary, there is a great deal of evidence (some of which was discussed in my last post) that the Framers were equally if not more concerned about foreign corruption of the president.

For example, during the Philadelphia Convention’s consideration of whether the president should be impeachable, James Madison thought it “indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate.” II Farrand’s Documentary History of the Constitution 65. Madison warned specifically that the president “might betray his trust to foreign powers.” Id. at 66.

Gouverneur Morris, who had initially leaned against the president’s impeachability, pronounced himself persuaded by the debate to change his mind. He explained:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst. it by displacing him. One would think the King of England well secured agst bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Id. at 68-69 (emphasis added). Morris’s point seems to be that there is a greater chance that the president would choose his private interest over that of the country than would the King of England, who basically owns his country as private property, yet even the latter could be successfully bribed by a foreign power. Be that as it may, these remarks confirm that the Framers were attuned to the danger of a president coming to be “in foreign pay.” It would therefore be highly surprising had the Framers decided the president, of all executive branch officials, should not be subject to the FEC. See Saikrishna Banglore Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 35, 41-42 (2009) (particularly in light of Framers’ knowledge of incidents such as payments from Louis XIV of France to Charles II of England, reading FEC “as if it permitted the President to receive foreign bribes, without any congressional oversight or check, makes little sense”).

It may be recalled from my last post that the anti-Federalists were dissatisfied with the Constitution’s protections in two respects relevant to our discussion. The first is that the FEC is not an absolute prohibition on foreign titles and payments, but allows for their acceptance with congressional consent. The second is that the president is simply too tempting a target for foreign influence and corruption because of the powers the Constitution concentrates in his hands. George Mason reflected both of these concerns in the Virginia ratifying convention when he pointed out that the president “may, by consent of Congress, receive a stated pension from European potentates.”

Responding to Mason’s argument, Edmund Randolph (who, like Mason, had been a delegate to the Philadelphia Convention) contended:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached. If he not be impeached, he may be displaced at the end of four years. By the 9th section of the 1st article, “no person, holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the representatives of the people;” and by the 1st section of the 2d article, his compensation is neither to be increased nor diminished during the time for which he shall have been elected; and he shall not, during that period, receive any emolument from the United States or any of them. I consider, therefore, that he is restrained from receiving any present or emolument whatever. It is impossible to guard better against corruption.

3 Elliot’s Debates 486.

This colloquy shows that Mason and Randolph, though disagreeing on the adequacy of the FEC and other constitutional provisions for this purpose, agree on two key points: (1) the president receiving emoluments or presents from foreign powers is a danger against which safeguards are needed; and (2) the FEC’s strictures do apply to the president.

Randolph’s remarks also suggest that the FEC and the Presidential Compensation Clause (art. II, § 1, cl. 7) are complementary restrictions that limit the president to a fixed salary and ensure that he does not receive any other emoluments from the United States, any state or any foreign power. One might quibble with Randolph on the grounds that the FEC is not an absolute prohibition, thus theoretically permitting the president to receive foreign emoluments or presents with congressional permission. In general, however, his remarks confirm, pace Professor Grewal, that the Framers did not see the presidency for some reason as raising concerns only as to domestic emoluments. Indeed, it is not obvious to me why anyone, with or without insight into the Framers’ deliberations, would think that the president would be singled out for restriction on domestic emoluments, while simultaneously excluded from a general prohibition on foreign emoluments.

Finally, we may address Grewal’s suggestion that the Framers might have been particularly concerned about potential foreign corruption of officers who, unlike the president, did not receive a fixed salary and were dependent on transaction-based payments for their livelihood. Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, *9 (forthcoming 2017). This idea strikes me as getting things a little backwards. The president’s compensation, unlike that of any other executive branch official, is constitutionally fixed because of the singular importance of his office and the need to ensure that Congress cannot financially reward or punish him during his term of office. Likewise, he is prohibited from receiving any other emoluments from the United States or any state to prevent any financial dependence or partiality on his part. It would be utterly implausible to think that the Framers would be less concerned about the need to insulate the president from foreign financial influence, or that they would have been more worried about foreign corruption of customs collectors or immigration officials.

Federal judges also have constitutional protection for their salaries, which cannot be diminished during their time in office. In comparison to the president, there is little reason to think that they would either be in regular contact with foreign powers, or that foreign powers would have reason to influence them. Yet federal judges are not exempted from the prohibitions of the FEC.  It is hard to see how it would make sense to exempt the president.

A more plausible explanation for excluding the president would relate to the requirement in the FEC to obtain congressional consent. It is at least possible to imagine that some could think it improper to require the president, as the head of a separate branch of government, to seek such consent whenever a foreign government offered him something “on the order of a snuffbox, a portrait, or a gold chain,” as Professor Currie puts it. See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 281 (1997). Rather than requiring the president to seek congressional permission, it would be left to his judgment whether to accept a foreign gift or an emolument personally or on behalf of the United States. If he should accept a bribe or an improper gift or payment that Congress considered to amount to a high crime or misdemeanor, he would be subject to impeachment.

Tillman suggests something along these lines in his comments to my blog post of 3-13-17. While stating “I frankly admit that I do not know” why the Framers might have exempted “federal elected officials” (including the president) from the FEC, Tillman proposes that the Framers might have “relied on elected officials to act like fiduciaries” and/or been concerned about giving another body the power to make judgments concerning “those at the apex of authority.” In the context of the president and the FEC, this would mean that the Framers may have preferred to rely on the president’s judgment regarding the acceptance of foreign presents and emoluments, instead of requiring him to submit to Congress’s judgment on such matters.

There is some surface plausibility to the “no congressional permission slip” explanation, but it is wrong for at least three reasons. First, as Professor Grewal noted regarding his own explanation, “no contemporaneous materials advance this understanding.” In other words, it’s a nice theory, but it is made up out of whole cloth. (I can say this since I made it up, and I think Tillman would agree as well). There is no evidence that any Framers (or anyone else) actually subscribed to it.

Second, this explanation overlooks an important aspect of the congressional consent requirement. This requirement doesn’t just restrict the foreign presents and emoluments that can be accepted; it also ensures that offers of such presents and emoluments are disclosed. If the recipient of a foreign gift or payment discloses it publicly, this is in itself some assurance that it is not improper and will not influence the recipient. If the gift or payment is kept secret, on the other hand, its discovery will excite suspicion even if it was not actually a bribe.

Had the Framers intended to permit the president to be the judge of his own emoluments, they would have provided for a mechanism for disclosure of his decisions. For example, they could have required that he inform Congress, rather than seek its permission. Simply omitting the president from the FEC would be a recipe for misunderstanding and suspicion, which would likely have led to wholly unnecessary and predictable charges of corruption.

Finally, and most importantly, while it is possible that some people might have subscribed to my theory, it is inconceivable that everyone would have done so. As we have seen, any suggestion of a loophole in the FEC that would have allowed the president to receive presents or emoluments (much less titles of nobility) from foreign powers without congressional permission or oversight would have excited tremendous opposition. The fact that there was no controversy on this point can only be explained in two ways: (1) the existence of a presidential loophole in the FEC was publicly known or discussed, and yet no one objected; or (2) everyone understood or assumed, and no one (at least publicly) disputed, that the president was in fact covered by the FEC. The overwhelming evidence is in favor of the latter over the former.

 

4 Comments

  1. Seth Tillman says:

    French diplomatic gift authorized by French gov’t transferred to Ambassador Ternant who gave it to President Washington who accepted it, afterwards sending it to his home in Mt Vernon. All without congressional consent or complaint from Congress. And the Hamilton list. And the 1790 Anti-Bribery Act, etc. Seth

  2. Seth- thanks as always for your comments (as you probably saw, I incorporated one of your earlier comments in the current post). The evidence that you cite here, however, while it may be probative of the ultimate constitutional question, does not go to the issue I have addressed in this series of posts, i.e.. the purpose of the FEC and any hypothetical exclusion of the president therefrom.

    For example, suppose we found a hitherto undiscovered legal opinion rendered to George Washington upon his receipt of one of the French gifts. The opinion states that the presidency is not an “office of profit or trust under the US” because, in the author’s view, the phrase derives from “office under the crown” and the president should be considered the “crown” for purposes of applying this technical legal term to the American system. It offers, however, no suggestion that the Framers intended to exclude the president from the FEC, or any reason why this result might have been intended, or even that anyone other than the author has realized the implication of the words used in the FEC.

    This would certainly be interesting information and very possibly probative of the proper interpretation of the FEC, and certainly would be more direct evidence of a “presidential loophole” in the FEC than anything we know of to date. But since it (by hypothesis) provides no reason for the president’s exclusion from the FEC other than inadvertence, it would not be relevant to the issues that I am covering right now.

  3. Andy Grewal says:

    Thanks, Mike. I enjoyed this series. For those who haven’t had a chance to read my article, I should point out that my discussion on whether the President comes within the FEC comprises just a few background paragraphs, and I ultimately take no position on that issue. I instead point readers to the Tillman/Teachout pieces and note that both scholars call the issue a “difficult” one. My article’s thesis instead related to the definition of emolument.

    I happily acknowledge that my piece does not explore every nuance of the purpose debate. My general sense is that the purposive arguments that have been made are not enough to overcome Tillman’s textual arguments, but I just haven’t studied the issue closely enough to commit to that position.

    I was intrigued by your argument that “federal judges are not exempted from the prohibitions of the FEC.” What authority would you invoke for that argument? I’ve never seen it in any OLC or Comptroller General opinion, at least. It seems like a lot of judges are going to have to be impeached if that statement is true AND if one accepts the Eisen/Painter/Tribe view of the emoluments clause.

    • Andy- thanks for your comment. I thought I had indicated in my post that you were only offering a possible explanation for the president’s exclusion, if in fact the president was excluded. But if I did not make that clear, I will add a clarifying note.

      With regard to federal judges, I didn’t think there was any controversy on this point, but I have to admit that I haven’t looked for any authority on it either. Just off the top of my head, federal judges are obviously civil officers of the United States for purposes of the Impeachment Clause, and I believe everyone (even Professor Tillman) understands that they hold offices of trust, honor or profit under the United States for purposes of the Disqualification Clause (otherwise they could be impeached and removed from office but not disqualified from holding the same office in the future, an odd result, although one that Tillman believes holds true for the president and vice president).

      The Eisen/Painter/Tribe view may be a problem for federal judges, but no more so than for executive branch officials, would it? There are a lot more of the latter than there are federal judges.

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