The District of Columbia et al v. Trump
OPINION. Signed by Judge Peter J. Messitte on 7/25/2018. (aos, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THE DISTRICT OF COLUMBIA
and THE STATE OF MARYLAND,
DONALD J. TRUMP,
individually and in his official capacity
as President of the United States,
Civil No. PJM 17-1596
In a previous Opinion1 the Court held that Plaintiffs, the District of Columbia and the State
of Maryland, have standing to challenge actions of President Donald J. Trump, in his official
capacity,2 that they believe violate the Foreign and Domestic Emoluments Clauses of the U.S.
See Opinion (Mar. 28, 2018), ECF No. 101 (Standing Opinion).
On February 23, 2018, without objection by the President, Plaintiffs filed a Motion for Leave to File an Amended
Complaint which would add him as a Defendant in his individual capacity. On March 12, 2018, the Court granted the
Motion, accepting the proposed Amended Complaint that accompanied the Motion. Mem. Order (Mar. 12, 2018),
ECF No. 94. The Court, however, decided to proceed on the official capacity claims separately so that its Standing
Opinion addressed only the standing arguments raised by the President in his official capacity. On May 1, 2018, the
President, in his individual capacity, filed a separate Motion to Dismiss. Def.’s Mot. Dismiss (May 1, 2018), ECF No.
112 (Individual Capacity Motion).The Court will address the individual capacity claims and the arguments to dismiss
them in a separate Opinion. The present Opinion addresses only those arguments pertaining to the President’s official
capacity as set forth in his Motion to Dismiss.
The Foreign Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, provides that “no Person holding any Office of Profit
or Trust under them [the United States], 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.”
The Domestic Emoluments Clause, U.S. Const. art. II, § 1, cl. 7, provides: “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.”
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Plaintiffs have alleged that the violations consist of the President’s actual or potential
receipt, directly or indirectly, of payments by foreign, the federal, and state governments (or any of
their instrumentalities) in connection with his and the Trump Organization’s ownership of the
Trump International Hotel in Washington, D.C.4 They seek declaratory relief establishing their
rights vis-à-vis the President’s actions as well as injunctive relief prohibiting him from further
violating the Clauses.
The President has moved to dismiss the Amended Complaint for failure to state a claim.
Although the President made this argument in his Motion to Dismiss and the parties addressed the
issue in their briefs in support of and in opposition to the President’s Motion, the Court deferred
deciding the meaning and applicability of the Clauses until the issue of standing was resolved.
Having decided that issue in favor of Plaintiffs, the Court turns to the issue of what the Clauses
mean and whether Plaintiffs have otherwise stated claims under them.
For the reasons that follow, the Court determines that Plaintiffs have convincingly argued
that the term “emolument” in both the Foreign and Domestic Emoluments Clauses, with slight
refinements that the Court will address, means any “profit,” “gain,” or “advantage” and that
accordingly they have stated claims to the effect that the President, in certain instances, has
violated both the Foreign and Domestic Clauses. The Court DENIES the Motion to Dismiss in that
Both the original and Amended Complaint alleged violations going well beyond those involving the Hotel in the
District of Columbia. The Court, in its Standing Opinion, found that Plaintiffs had demonstrated the requisite
injury-in-fact for standing purposes only with respect to the Hotel and to the activities of the Trump Organization
relating to it. It held that, while the President’s and the Trump Organization’s operations outside the District of
Columbia might at some other time and/or some other place be the subject of a lawsuit or lawsuits, they were not part
of the present one.
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FACTUAL AND PROCEDURAL BACKGROUND
A full account of the facts alleged in this case is set out in the Court’s Standing Opinion.5
For present purposes, the Court briefly recapitulates the facts necessary to consider the issue at
Many facts are undisputed or essentially undisputed. Donald J. Trump is the President of
the United States and the sole or a substantial owner of both the Trump Organization LLC and The
Trump Organization, Inc. (collectively, the Trump Organization), umbrella organizations under
which many, if not all, of the President’s various corporations, limited-liability companies, limited
partnerships, and other entities are loosely organized. Am. Compl. ¶¶ 20, 29 (Mar. 12, 2018), ECF
No. 95. Of particular importance in the present suit is the President’s ownership, through the
Trump Organization, of the Trump International Hotel in Washington, D.C. (the Hotel).
The Hotel is a five-star, luxury hotel located on Pennsylvania Avenue, N.W., in
Washington, near the White House. Id. ¶ 34. While the President does not actively manage the
Hotel, through the Trump Organization, he continues to own and purportedly controls the Hotel as
well as the bar and restaurant, BLT Prime, and the event spaces located within the establishment.
Id. ¶¶ 29, 34-36. Directly or indirectly, the President actually or potentially shares in the revenues
that the Hotel and its appurtenant restaurant, bar, and event spaces generate. Id.
On January 11, 2017, shortly before his inauguration, the President announced that he
would be turning over the “leadership and management” of the Trump Organization to his sons,
Eric Trump and Donald Trump, Jr. Id. ¶ 30. Prior to taking office, he also announced that all
profits earned from foreign governments would be donated to the U.S. Treasury. Id. ¶ 46. The
Trump Organization stated that it would not be tracking all payments it might receive from foreign
For a more detailed discussion of the facts alleged in the Amended Complaint, see the Court’s Standing Opinion.
Standing Op. at 2-7.
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governments and only planned to make an estimate with regard to such payments. Id. However,
following his inauguration and, as of the date of the filing of this action, June 12, 2017, the
President had made no such “donations” to the U.S. Treasury.6 See Am. Compl. ¶¶ 46, 138.
Despite these pronouncements, Plaintiffs allege that the President continues to own and have
intimate knowledge of the activities of the Trump Organization. Id. ¶ 31. Indeed, according to
Plaintiffs, at the outset of his Presidency one of his sons stated that he would be providing business
updates to the President regarding the Organization on a quarterly basis and, although the
President may have formed a trust to hold his business assets, it appears that he remains able to
obtain distributions from this trust at anytime and may have actually received such payments from
time to time. Id. ¶¶ 29, 31-32.7
Since the President’s election, a number of foreign governments or their instrumentalities
have patronized or have expressed a definite intention to patronize the Hotel, some of which have
indicated that they are doing so precisely because of the President’s association with it. Am.
Compl. ¶¶ 39-43. The President has at no time sought the consent of Congress for him to accept the
According to a February 2018 press report, the President stated that he had paid to the U.S. Treasury profits the Hotel
had received from foreign governments. No details with respect to such payments, however, were provided, viz., when
the payments were made, which governments or their instrumentalities made them, how much each paid, how the
amounts each paid were calculated, who verified the calculations, and how much was calculated over what period of
time. See David A. Fahrenthold & Jonathan O’Connell, Trump Organization Says It Has Donated Foreign Profits to
U.S. Treasury, but Declines to Share Details, Wash. Post (Feb. 26, 2018),
0. Nor is there any indication as to whether the President has made any such payments since the payments reported in
The Court notes that, as reported by the press, the President’s trust allows him to withdraw money from any business
at any time, and that the trustees “shall distribute net income or principal to Donald J. Trump at his request,” or
whenever they “deem appropriate.” The trustees of the trust are Donald Trump, Jr. and the Trump Organization Chief
Financial Officer Allen Weisselberg. Drew Harwell, Trump Can Quietly Draw Money from Trust Whenever He
Wants, New Documents Show, Wash. Post. (Apr. 3, 2017),
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revenues the Hotel receives or could potentially receive from these foreign governments, nor has
Congress ever approved the receipt of such revenues. Id. ¶ 33.
In addition, at least one State—Maine—patronized the Hotel when its Governor, Paul
LePage, and his entourage visited Washington to discuss official business with the Federal
Government, including discussions with the President. Pls.’ Opp’n. at 8 (Nov. 7, 2017), ECF No.
Plaintiffs further allege that the Hotel has received a benefit, which they say is an
“emolument,” from the Federal Government by virtue of the General Services Administration
(GSA) Lease which governs the Trump Organization’s use of the Old Post Office Building, the
site of the Hotel. Am. Compl. ¶¶ 80-86. Thus Section 37.19 of the Old Post Office Lease states:
“No . . . elected official of the Government of the United States . . . shall be admitted to any share
or part of this Lease, or to any benefit that may arise therefrom.” Id. ¶ 82. Despite a previous
statement from a GSA official that the President would be in violation of the Lease unless he fully
divested himself of all financial interest in the Lease, following the President’s inauguration, the
GSA reversed its position, determining that the President was in fact in compliance with the Lease.
Id. ¶¶ 83-84. Since then, the Trump Organization and through it the President have enjoyed the
benefits of the Lease.
Plaintiffs allege that these actions of the President, through the Trump Organization,
violate both the Foreign and Domestic Emoluments Clauses.
The issue before the Court at this juncture is whether Plaintiffs’ allegations state viable
claims for relief with respect to the President’s purported violations of the Foreign and Domestic
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The key dispute the parties have is over the meaning of the term “emolument”8 in the
Clauses, although more can and will be said about other terms within the Clauses.
Plaintiffs submit that the President’s actions clearly offend the Clauses. An “emolument,”
they say, citing among other things the definition of the term in a considerable number of
dictionaries contemporaneous with the Constitutional Convention, as well as the purpose of the
Clauses to prevent against possible undue influence upon the federal official, is any “profit,”
“gain” or “advantage.” Am. Compl. ¶¶ 23-28; Pls.’ Opp’n at 29-30. Accordingly, say Plaintiffs,
the Clauses were framed so as to flatly bar the receipt by anyone holding office under the authority
of the United States, including the President, of any profit, gain, or advantage of any nature or kind
whatsoever from any foreign, the federal, or state government. Pls.’ Opp’n at 29. No exception
exists, Plaintiffs continue, even if the foreign, federal, or domestic donor receives a quid pro quo
from the officeholder in connection with the officeholder’s private undertakings. It is enough that
the President directly or indirectly receives money from foreign, the federal, and domestic
government officials who patronize his Hotel; the Emoluments Clauses are violated.
The President argues that the Emoluments Clauses do not apply to his actions at all—citing
(albeit fewer) other dictionary definitions more or less contemporaneous with the adoption of the
Clauses to the effect that an “emolument” refers to a “profit arising from an office or employ.”
Def.’s Mot. Dismiss at 32 (Sept. 29, 2017), ECF No. 21-1. Based on this definition and what he
argues is the purpose and historical context of the Clauses, the President submits that an
“emolument” pertains only to a payment made in connection with a particular employment over
and above one’s salary as, say, President of the United States, so that payments to a federal official
for any independent services rendered, such as for the rental of hotel rooms or event spaces
The President does not appear to dispute that, under Plaintiffs’ interpretation of the term, the Amended Complaint
would state a claim or claims for relief.
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privately owned by the officeholder, or payments for meals at his restaurants, privately owned, are
payments entirely separate and apart from an “emolument” paid to the President qua President. Id.
at 31-32. Accordingly, the Amended Complaint, in the President’s view, does not state plausible
claims for relief. He urges the Court to dismiss it on these grounds.
Although the President himself does not make the argument, as a preliminary matter one of
the Amici Curiae suggests that the President is not covered by the Foreign Emoluments Clause at
all because his elective office does not “arise under the authority” of the United States. See Br. for
Scholar Seth Barrett Tillman & The Judicial Education Project as Amici Curiae in Support of Def.
(Oct. 6, 2017), ECF No. 27-1 (Professor Tillman). The Court deals briefly with this latter argument
at the outset.
STANDARDS FOR CONSTITUTIONAL INTERPRETATION
The Court begins with a review of the standards for judicial interpretation of a clause in the
Although there has been much public debate, especially in recent years, over which theory
or theories should be applied in interpreting constitutional provisions —ranging from strict
constructionism,9 originalism10 and original meaning11 to the purposive approach12 and the
Strict constructionism, referred to sometimes as “strict originalism,” is the theory that constitutional interpretation
requires following the literal text and specific intent of the Constitution’s drafters. See, e.g., Erwin Chemerinsky,
Constitutional Law: Principles and Policies 19 (3d ed. 2006).
While the distinction between strict constructionism and more moderate originalism is not always clear, originalism
is “more concerned with the adopters’ general purposes than with their intentions in a very precise sense.” In other
words, originalism focuses on the Framers’ general concepts when drafting a particular constitutional provision rather
than their specific intent at the time. See id.
Original meaning is yet another variation on originalism propounded by Justice Antonin Scalia which looks to
historical practices and the understanding at the time of the drafting of the Constitution to determine the original
meaning of a particular constitutional provision. See id. at 20.
The purposive approach seeks to interpret a constitutional provision within the context of its purpose. “Purposive
Construction,” Black’s Law Dictionary (9th ed. 2009).
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Living Constitution,13 with perhaps shadings in-between—the parties do not lock horns over this.
Both sides embrace a blend of original meaning and purposive analysis (i.e., relying on external
aids, especially dictionary definitions more or less contemporaneous with the Constitutional
debates and, insofar as possible, the intent of the Framers) in support of their view that the
Emoluments Clauses should or should not apply to the President and, if applicable, to which of his
actions they should apply.14
Supreme Court precedent confirms that a blend of textualism and purposivism should
guide the Court’s approach.
The meaning of a Constitutional provision “begin[s] with its text.” City of Boerna v.
Flores, 521 U.S. 507, 519 (1997). Where the text is clear, “there is no room for construction and no
excuse for interpolation or addition.” United States v. Sprague, 282 U.S. 716, 731–32 (1931)
(citing, inter alia, Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816)). Moreover, in
interpreting the text, the Court is “guided by the principle that ‘[t]he Constitution was written to be
understood by the voters; its words and phrases were used in their normal and ordinary as
distinguished from technical meaning.’” District of Columbia v. Heller, 554 U.S. 570, 576 (2008)
(quoting Sprague, 282 U.S. at 731). “Normal meaning may of course include an idiomatic
Those who promote the theory of a “Living Constitution” argue that the Constitution must be able to adapt to
current needs and attitudes that have changed since the original drafting. In other words, the Constitution does not
have one fixed meaning but is a dynamic document the meaning of which can change over time. See, e.g., Kermit
Roosevelt, Originalism and the Living Constitution: Reconciliation at 1 (July 2007),
Although the parties’ briefs now and again seem to suggest that their interpretation of the Emoluments Clauses and
especially the meaning of the term “emolument” are self-evident almost to the point of evoking the Plain Meaning
Rule, neither side of course goes that far. But this is perhaps a convenient starting place to question the logic of the
President’s view that an “emolument” has to be employment-related and therefore when he receives emoluments from
foreign states, e.g., for private services rendered, his actions are not covered by the Emoluments Clauses. Accepting
the President’s argument arguendo, why doesn’t logic suggest that the foreign and domestic government payments he
receives in connection with the Hotel are in fact an “emolument” to his salary as President? Especially when foreign
governments are on record as saying that they have been or will be patronizing the Hotel precisely because the
President is the President? And what if the foreign and state governments pay a premium over market to patronize the
Hotel? In other contexts, padded contracts have been held to cover illegitimate payments over and above otherwise
legitimate payments for services rendered.
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meaning, but it excludes secret or technical meaning that would not have been known to ordinary
citizens in the founding generation.” Id. at 576-77. To determine the original public meaning, the
Supreme Court has looked to founding-era dictionaries and other contemporaneous sources. See
NLRB v. Noel Canning, 134 S. Ct. 2550, 2561 (2014) (discussing founding-era dictionary
definitions and the Framers’ use of the word “recess” in the Constitution’s Recess Appointments
Clause); Heller, 554 U.S. at 581-86 (looking to founding-era dictionaries, William Blackstone’s
Commentaries on the Laws of England, and State constitutions to determine the meaning of the
When a constitutional provision is ambiguous, however, the Court has recognized the need
“to consider the Clause’s purpose and historical practice.” Noel Canning, 134 S. Ct. at 2559, 2568
(“[I]n interpreting the Clause, we put significant weight upon historical practice.”) (emphasis
omitted); id. at 2559 (“[L]ong settled and established practice is a consideration of great weight in
a proper interpretation of constitutional provisions regulating the relationship between Congress
and the President.”) (citation and quotation marks omitted); see also Heller, 554 U.S. at 592 (“This
meaning is strongly confirmed by the historical background of the [provision].”). Importantly,
moreover, the Supreme Court has treated executive practice and precedent “as an interpretive
factor even when the nature or longevity of that practice is subject to dispute, and even when that
practice began after the founding era.” Noel Canning, 134 S. Ct. at 2560, 2562-63 (evaluating past
historical practice and discussing Government ethics opinions to inform the Court’s determination
“of what the law is”).
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THE EMOLUMENTS CLAUSES
Because one of the Amici Curiae has suggested that the Foreign Emoluments Clause does
not apply to the President at all, the Court briefly addresses this issue before turning to the meaning
of the term “emolument” itself.15
A. “Office of Profit or Trust under [the United States]”
Amicus Curiae Professor Seth Barrett Tillman of the Maynooth University Department of
Law argues that the Foreign Emoluments Clause does not extend to the President because the
Presidency does not qualify as an “Office of Profit or Trust under [the United States].” The
Framers, he says, distinguished between different federal offices and drafted different rules for
these distinct federal positions. Tillman Br. at 2, 4. Specifically, Professor Tillman argues that an
office “under the United States,” which is the language used in the Foreign Emoluments Clause,
refers to a federal appointed position that “is created, regularized, or defeasible by statute.” Id. at 7.
According to Professor Tillman, the Clause does not reach elected positions; to the contrary, he
says, only express language can reach the Presidency.
Professor Tillman claims that this conclusion is supported by both the text and history of
the Constitution. He submits, for example, that in the Colonial Period the phrase “Office under the
Crown” was a commonly-used drafting convention that referred only to appointed—not elected—
positions, a distinction that he suggests remains operative in the United Kingdom today. Id. at 8-9.
The Framers of the Constitution and the First Congress, he continues, adhered to this drafting
convention. He points to an anti-bribery statute enacted in 1790 in which Congress declared that a
defendant convicted of bribing a federal judge “shall forever be disqualified to hold any office of
honor, trust, or profit under the United States.” Id. at 13 (citing An Act for the Punishment of
There is no dispute that the President is covered by the Domestic Emoluments Clause. He is named in the text and is
the sole subject of the Clause. See U.S. Const. art. II, § 1, cl. 7 (“The President shall. . . .”).
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Certain Crimes, ch. 9, 1 Stat. 112, 117 (1790)). Professor Tillman argues that this statute could not
have been understood to include the Presidency because Congress does not have the power to add
new qualifications for federal elected positions. Id. In further support of his theory, he points out
that, in 1792, the Senate directed President George Washington’s Secretary of the Treasury,
Alexander Hamilton, to draft a financial statement listing the “emoluments” of every person
holding “any civil office or employment under the United States.” Id. at 15 (citing 1 Journal of the
Senate of the U.S.A. 441 (1820) (May 7, 1792 entry)). Since Hamilton’s response did not include
the President, Vice President, Senators, or Representatives, Amicus says this is a further indication
that the founding-era generation did not consider the phrase “office under the United States” to
extend to elected positions. Id. at 15-16.
Despite Amicus’ citations to a select number of historical examples, the Court finds that the
text, history, and purpose of the Foreign Emoluments Clause, as well as executive branch
precedent interpreting it, overwhelmingly support the conclusion that the President holds an
“Office of Profit or Trust under [the United States]” within the meaning of the Foreign
Beginning with the text of the Clause, the only logical conclusion, when read with the rest
of the Constitution, is that the President holds an “Office of Profit or Trust under [the United
States].” The Constitution repeatedly refers to the President as holding an “office.” See, e.g., U.S.
Const. art. II § 1, cl. 1 (“[The President] shall hold his Office during the Term of four Years[.]”);
id., cl. 5 (eligibility requirements for the “Office of President”); id. cl. 8 (requiring the President
take an oath to “faithfully execute the Office of President of the United States.”). And if text is to
be given its plain meaning, the “Office of the President” is surely one of both profit and trust. See
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Sprague, 282 U.S. at 731–32 (stating that the Constitution’s “words and phrases were used in their
normal and ordinary” meaning). The President receives compensation for his services (profit) and
is entrusted with the welfare of the American people (trust). See, e.g., Deborah Sills, The Foreign
Emoluments Clause: Protecting Our National Security Interests, 26 Brooklyn J. L. & Pol’y 63, 81
(“The term ‘Office of Profit’ refers to an office in which a person in office receives a salary, fee, or
compensation. The term ‘Office of Trust,’ refers to offices involving ‘duties of which are
particularly important.’”) (citing Application of the Emoluments Clause to a Member of the
President’s Council on Bioethics, 29 Op. O.L.C. 55, 61-62 (2005)).16
The text also indicates that the President’s “Office of Profit or Trust” is one “under the
United States.” As the Domestic Emoluments Clause illustrates, the term “United States” is used
in the Constitution to distinguish between the federal and state governments. See U.S. Const. art.
II, § 1, cl. 7 (forbidding emoluments from the United States or “any of them,” referring to the
States). As a federal office holder, then, the President holds his office “under the United States.”
Indeed, reading the phrase “Office of Profit or Trust under [the United States]” to exclude
the President would lead to an essentially absurd result. Consider Article I, Section 3, cl. 7 of the
Constitution, which provides that an impeached official shall be disqualified from holding “any
Office of honor, Trust or Profit under the United States.” U.S. Const. art. I, § 3, cl. 7. As a
The OLC or Office of Legal Counsel is an office within the Department of Justice that drafts legal opinions for the
Attorney General and provides its own written opinions and other advice in response to requests from the Counsel to
the President, the various agencies of the Executive Branch, and other components of the Department of Justice. See
“Office of Legal Counsel,” The United States Department of Justice, https://www.justice.gov/olc. Although not
binding on courts, OLC opinions are entitled to considerable weight because they “reflect the legal position of the
executive branch” and “provid[e] binding interpretive guidance for executive agencies.” United States v. Arizona, 641
F.3d 339, 385 n.16 (9th Cir. 2011) (Bea, J., concurring) (quoting Congressional Research Service, Authority of State
and Local Police to Enforce Federal Immigration Law, Sept. 17,
2010, http://www.ilw.com/immigrationdaily/news/2010, 1104–crs.pdf), aff’d in part, rev’d in part, 567 U.S. 387
(2012)); see also Cherichel v. Holder, 591 F.3d 1002, 1016 & n.17 (8th Cir. 2010) (“We note, however, that while
OLC opinions are generally binding on the Executive branch, the courts are not bound by them.”) (citations omitted);
N.Y. Times Co. v. U.S. Dep’t of Justice, 138 F. Supp. 3d 462, 478 (S.D.N.Y. 2015); Public Citizen v. Burke, 655 F.
Supp. 318, 321–22 (D.D.C. 1987).
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Memorandum issued by the Brookings Institution highlights, “[i]f the President did not hold an
office ‘under the United States,’ a disgraced former official would be forbidden from every federal
office in the land, but could be President.” Norman Eisen, Richard Painter, & Laurence Tribe, The
Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump at 8, Brookings
Institution (Dec. 16, 2016),
In all, reading the Constitution as a complete document rather than piecemeal establishes
that the President holds an “Office of Profit or Trust under [the United States].”
2) Original Public Meaning & Purpose
Even if the text were ambiguous, the historical context and purpose of the Foreign
Emoluments Clause confirm that the Framers understood the Presidency to be an “Office of Profit
or Trust under [the United States].” As one historical scholar has noted, when the totality of
founding-era evidence is considered, “an avalanche buries [Tillman’s] fanciful claims.” Prakash,
supra note 17, at 147.
To start, the Federalist Papers on numerous occasions refer to the President as the occupier
of an “office.” See, e.g., The Federalist No. 39 (James Madison) (“The President of the United
States is impeachable at any time during his continuance in office.”) (emphasis added); The
Federalist Nos. 66 (Alexander Hamilton) (“It will be the office of the President . . .” (emphasis
added), 68 (“the office of President”) (emphasis added)). Though Professor Tillman places great
emphasis on the conduct of Washington and Hamilton, he curiously fails to explain why both these
For further examples of the “bizarre consequences” resulting from the interpretation advanced by Professor
Tillman, see the Brookings Memorandum’s discussion at pages 8-9. Id. (noting that under Professor Tillman’s
interpretation, the President could simultaneously hold a seat in Congress, sit in the Electoral College, and be subject
to a religious test); see also Saikrishna Prakash, Why the Incompatibility Clause Applies to the Office of the President,
4 Duke J. Const. L. & Pub. Pol’y 143, 148-51 (2009).
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individuals on other occasions also refer to the “office of President.” See, e.g., Letter from George
Washington to Solomon Bush (Nov. 24, 1789), Library of Congress Digital Collection,
sp=3&st=slideshow&sb=shelf-id (referring to his election to the “Office of President of the United
States”); Letter from Alexander Hamilton to George Washington (Sept. 1788),
https://founders.archives.gov/documents/Hamilton/01-05-02-0037 (discussing Washington’s
“acceptance of the office of President”).
Moreover, in light of the purpose of the Foreign Emoluments Clause, as discussed in
greater detail below,18 the “office” of the President was explicitly understood to be one of “Profit
or Trust under [the United States].” The few discussions surrounding the Clause indicate that the
Framers were extremely concerned about possible improper and undue influences on the President
in particular. See pages 34-36, infra. Edmond Randolph, at the Virginia Ratification Convention,
expressly described the Clause as applying to the President. 3 Jonathan Elliot, The Debates in the
Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the
General Convention at Philadelphia, in 1787 486 (2d ed. 1891) (stating that the Clause protects
against the threat of the “President receiving emoluments from foreign powers”) (emphasis
added). Insofar as that is so, the Framers must have understood him to hold an “Office of Profit or
Trust under [the United States].”
Professor Tillman’s argument that the First Congress must have understood the phrase
“Office of Profit or Trust under [the United States]” to exclude the President because of the
existence of the 1790 anti-bribery statute is especially perplexing. That Congress would have
See discussion in Section III.B.3, infra.
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intended a person convicted of bribing a federal judge to be banned from holding every federal
office except the office of President is, in the Court’s view, altogether unlikely.
3) Executive Branch Precedent and Practice
Finally, if the foregoing considerations were not in and of themselves dispositive of
Professor Tillman’s argument, consistent executive branch practice and precedent over the years
have definitively put his thesis to rest. As the OLC stated in 2009, “[t]he President surely “hold[s]
an Office of Profit or Trust[.]” Applicability of the Emoluments Clause and the Foreign Gifts and
Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1, 4 (2009).
This statement was fully consistent with prior OLC opinions that had applied the Foreign
Emoluments Clause to the President. See, e.g., Proposal That the President Accept Honorary Irish
Citizenship, 1 Supp. Op. O.L.C. 278, 278 (1963) (“I believe that acceptance by the President of
honorary Irish citizenship would fall within the spirit, if not the letter, of [the Foreign Emoluments
The Court concludes that the President holds an “Office of Profit or Trust under [the United
States]” and, accordingly, is subject to the restrictions contained in the Foreign Emoluments
The question remains: What are those restrictions?
Having determined that both Emoluments Clauses apply to the President, the Court must
now decide what the term “emolument” within them means.
While both parties begin with the text of the Clauses, they offer significantly different
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Plaintiffs argue that the text indicates a clear intention that a broad definition of
“emolument,” applies, that it means any “profit,” “gain,” or “advantage.” Not only was this
definition more common at the time of the drafting,19 they say. This definition best accords with
the surrounding text of the Clauses. Indeed, Plaintiffs continue, both Clauses contain expansive
modifiers. The Foreign Emoluments Clause bans “any” “Emolument . . . of any kind whatever.”
Pls.’ Opp’n at 33. Similarly, the Domestic Emoluments Clause prohibits the President’s receipt of
“any other Emolument.” In Plaintiffs’ view, these modifiers indicate that the term was meant to
have the widest possible scope and applicability. Id. at 35.
These expansive modifiers, Plaintiffs argue, stand in marked contrast to the only other
place in the Constitution where the term “emolument” appears, the Incompatibility Clause, which
restricts increases in the compensation of members of Congress.20 That clause contains a
restrictive modifier, limiting its applicability to the “Emoluments whereof,” suggesting its limited
applicability to the office of Congressmen alone. Plaintiffs dispute that any meaningful
comparison can be made between the Incompatibility Clause and the Emoluments Clauses since
neither of the latter two contains such a restrictive modifier. Pls.’ Opp’n at 41 n.28.
Despite the President’s argument to the contrary, Plaintiffs say that interpreting
“emolument” to cover essentially anything of value would not create redundancies within the
Foreign Emoluments Clause’s separate ban on “presents.” Rather, they submit, the term “present”
in the Foreign Clause was likely intended to ensure that the acceptance of any unsolicited,
unreciprocated “gift” given merely as a sign of gratitude would be covered, whereas the
prohibition against receipt of an “emolument” would reach payments made with the more obvious
See the discussion regarding the original public meaning of the term in Section III.B.2, infra.
The Incompatibility Clause, U.S. Const. art. I, § 6, cl. 2, provides: “No Senator or Representative shall, during the
Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall
have been created, or the Emoluments whereof shall have been encreased during such time.” (emphasis added).
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 17 of 52
intention to influence. Id. at 34-35 n.22. The point is that both types of payments would be
The President, while acknowledging that the broader definition of “emolument” advanced
by Plaintiffs also existed during the founding era, asserts that this should be of no importance
because the term has to be read in context with the rest of the words of the Emoluments Clauses
under the familiar rule of construction known as noscitur a sociis.21 Doing so, he submits,
supports his position that an “emolument” is only a payment made as compensation for official
The President claims that this narrower definition of “emolument” is more consistent with
the nature of the other prohibited categories in the Foreign Clause. “Present,” “office,” and “title”
are all things personally conferred or bestowed upon a U.S. official. Def.’s Mot. Dismiss at 33. The
terms “any” and “any kind whatever,” he says, are included in the Clauses simply to ensure that
every type of identified compensation, e.g., “present,” “office,” “title”, is captured by the Clause.
This is not, he claims, a basis to choose whether “emolument” has a separate meaning. Def.’s
Reply at 19 (Dec. 1, 2017), ECF No. 70.
The President argues that his position is further bolstered by the text of the Domestic
Emoluments Clause where, he says, “compensation” is qualified by “for his services,” meaning
that “any other Emolument” must also be qualified by “for his services.” Def.’s Mot. Dismiss at
33. In effect, the President argues that the Domestic Emoluments Clause should read: “The
President shall, at stated Times, receive for his Services, a Compensation, . . . and he shall not
receive [for his services] within that Period any other Emolument[.]”
Noscitur a sociis “is a rule of construction applicable to all written instruments” and applies to terms “the meaning
naturally attaching to them from their context.” Virginia v. Tennessee, 148 U.S. 503, 519 (1893); see also “Noscitur a
sociis,” Black’s Law Dictionary (9th ed. 2009).
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Further, referring to the Constitution as a whole, the President maintains that the
Incompatibility Clause actually supports his argument that “emolument” refers to compensation
for an officeholder’s services. Def.’s Reply at 20. In his view, because the Incompatibility Clause
treats an “emolument” as an aspect of an office that cannot be increased, it expressly ties an
emolument to an official’s employment and duties, which suggests the same meaning for the term
in the Emoluments Clauses. Id. Acknowledging that the Incompatibility Clause contains a
restrictive modifier, the President dismisses this as a result of the fact that it deals with a specific
office—i.e., the civil office for which salary has been increased—whereas the Foreign
Emoluments Clause does not include any such office-related limitation. Id. In other words,
because the Foreign Emoluments Clause does not reference a specific office, it supposedly has a
broader reach than the Incompatibility Clause. It regulates not only compensation or benefits for
jobs held by former Senators or Congressmen; it extends to benefits payable to any federal official
in his capacity as a federal official. Id. The term “emolument” is not meant to have a broader
Finally, says the President, interpreting “emolument” to cover anything of value would
create unnecessary redundancies within the Foreign Clause because it would include within its
scope the term “present,” which necessarily has a separate and undisputed meaning. Interpreting a
term to create such a redundancy, he continues, runs counter to Supreme Court precedent, which
states that “every word must have its due force, and appropriate meaning” because “it is evident”
that “no word was unnecessarily used, or needlessly added.” Def.’s Mot. Dismiss at 36 (quoting
Holmes v. Jennison, 39 U.S. 540, 570-71 (1840)).
The Court agrees with the parties that the term “emolument” must be read in harmony with
the surrounding text of the Emoluments Clauses. But ultimately it finds Plaintiffs’ arguments more
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persuasive. The text of both Clauses strongly indicates that the broader meaning of “emolument”
advanced by Plaintiffs was meant to apply. As Plaintiffs point out, the Foreign Clause bans,
without Congressional approval, “any present, Emolument, Office, or Title, of any kind whatever,
from any King, Prince or foreign State.” U.S. Const. art. I, § 9, cl. 8 (emphasis added). Use of such
expansive modifiers significantly undermines the President’s argument that this Clause was meant
to prohibit only payment for official services rendered in an employment-type relationship. If there
were any doubt as to the limits of the Foreign Clause, the Framers used the word “any” twice,
ensuring a broad and expansive reach. The President’s argument that these modifiers merely
ensure that the Foreign Clause bans receipt of every type of “present,” “emolument,” “office,” or
“title” is unconvincing. Even without the inclusion of the modifier “of any kind whatever” in the
Foreign Clause, it would still ban every type of prohibited category because it provides no
exceptions. If “no word was unnecessarily used,” as the President argues, Def.’s Mot. Dismiss at
36, his own position runs aground. The more logical conclusion is the one that Plaintiffs urge: The
use of “any kind whatever” was intended to ensure the broader meaning of the term “emolument.”
The phrase “any other Emolument” in the Domestic Emoluments Clause suggests the same
broad interpretation of the term. The Court does not read the Clause to qualify “emolument” by the
words “for his services.” The use of “any other” in the Clause once again points firmly in
Plaintiffs’ direction. The Court, in effect, construes the Clause to read: “The President shall . . .
receive for his Services, a Compensation, . . . and he shall not receive [for any reason] within that
Period any other Emolument [of any kind].” But ultimately, even allowing that the term
“emolument” might be qualified by the words “for his services” in the Domestic Clause, this
amounts to no silver bullet for the President. Logic equally suggests that the payments, direct or
indirect, that he receives from domestic governments in connection with the Hotel are in fact
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 20 of 52
“emoluments” to his salary as President. Again, it has been alleged that the State of Maine
patronized the Hotel when its Governor, Paul LePage, and his staff visited Washington to discuss
official business with the Federal Government, including holding discussions with the President as
President, Pls.’ Opp’n. at 8, and when, on at least one of those trips, Governor LePage and the
President appeared together at a news conference at which the President signed an executive order
to review actions of the prior administration that established national monuments within the
National Park Service, which could apply to a park and national monument in Maine, which
President Obama had established over Governor LePage’s objections in 2016. Id.
Equally unpersuasive is the President’s argument that the meaning of the term
“emoluments” in the Incompatibility Clause somehow undermines Plaintiffs’ claims. As Plaintiffs
point out, unlike the Emoluments Clauses, the Incompatibility Clause contains a restrictive
modifier limiting the “Emoluments whereof” mentioned there to an expressly referenced office,
viz. the office for which compensation has been increased by Congress. It most assuredly weighs
in favor of Plaintiffs’ argument that the Framers felt the need to include such a modifier. If
“emolument” were always to be read as a synonym for salary or payment for official services
rendered, this modifier in the Incompatibility Clause would have been unnecessary.
Nor does interpreting “emolument” to mean “profit,” “gain,” or “advantage,” as the
President suggests, render the term “present” in the Foreign Emoluments Clause redundant. As the
President himself concedes, a “present” in the founding era was defined then, as it is today, as
something “bestowed on another without price or exchange.” Def.’s Mot. Dismiss at 37. It has
been noted that historically unsolicited gifts, i.e. presents, were commonly given by European
heads of state as a matter of custom. See Zephyr Teachout, Corruption in America: From
Benjamin Franklin’s Snuff Box to Citizens United 1-5 (2014). In contrast, the term “emolument,”
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 21 of 52
used in reference to a “profit,” “gain,” or “advantage” from any kind of exchange22 enables the
Foreign Clause to reach private commercial transactions that would not be covered by the term
“present.” Thus, even if the term “emolument” was sometimes used synonymously with the term
“present,” its use in the Foreign Emoluments Clause would ensure that the Clause covered all
types of financial transactions—solicited or unsolicited, reciprocated or unreciprocated, official or
On the other hand, the President’s cramped interpretation of the term would seem to create
its own concerning redundancies within the Constitution. Characterizing an “emolument” as “the
receipt of compensation for services rendered by an official in an official capacity,” Def.’s Mot.
Dismiss at 31, is tantamount to defining the transaction as nothing less than one of federal bribery,
a crime which prohibits a federal public official from, directly or indirectly, receiving or accepting
“anything of value” in return for “being influenced in the performance of any official act.” 18
U.S.C. § 201(b)(2). Given that Article II, Section 4 of the Constitution already addresses the crime
of bribery, making it an impeachable offense,23 there would have been little need to include two
additional and distinct Emoluments Clauses prohibiting the acceptance of money from foreign or
state governments for official services rendered. Moreover, it seems highly unlikely that the
Framers would have intended bribery to be both an impeachable offense and, at the same time, an
activity Congress could consent to when a foreign government donor is involved. The President
makes no attempt to come to terms with this anomaly.
See Section III.B.2, infra, for a more detailed discussion on the ordinary use of the term.
U.S. Const. art. II, § 4 provides: “The President, Vice President and all civil Officers of the United States, shall be
removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 22 of 52
Accordingly, given the text of both Clauses, the Court begins with a strong presumption
that the term “emolument” should be interpreted broadly to mean “profit,” “gain,” or “advantage,”
essentially covering anything of value.24
2) Original Public Meaning
Because the Constitution was “written to be understood by the voters,” Heller, 554 U.S. at
576, it is important to consider the meaning of the term “emolument” against the backdrop of what
ordinary citizens at the time of the Nation’s founding would have understood it to mean. Though
the parties apparently agree that the term “emolument” had at least two meanings at the time of the
Constitutional Convention, they diverge as to its ordinary, common usage by the founding
Plaintiffs contend that the most common definition of emolument at the time was “profit,”
“gain,” or “advantage.” Pls. Opp’n at 31 (citing 1 Johnson, A Dictionary of the English Language
(6th ed. 1785); Bailey, An Universal Etymological English Dictionary (20th ed. 1763)). Indeed,
they cite an article by Professor John Mikhail of Georgetown University Law Center in which,
following exhaustive research, he concluded that “every English dictionary definition of
‘emolument’ from 1604 to 1806” includes Plaintiffs’ broader definition. Id. (citing John Mikhail,
The Definition of “Emolument” in English Language and Legal Dictionaries, 1523–1806, 1–2
(June 30, 2017), https://ssrn.com/abstract=2995693). Moreover, say Plaintiffs, the word was often
used in this broad sense by drafters of State constitutions, by Blackstone, by Supreme Court
Justices, and by the Framers themselves. Id. at 31-32 (citing Pa. Const., art. V (1776)
At various times Plaintiffs use the term “anything of value,” which the President argues leads to absurd
consequences. Hr’g Tr. at 7:8- 8:13, 26:20-28:8, 41:20-25, June 11, 2018 (Hr’g Tr.). The Court relies on the dictionary
definitions of the period of “profit,” “gain,” or “advantage,” see the discussion in Section III.B.2, infra, which the
Court reads in most contexts as essentially synonymous with the words “anything of value.” However, to the extent
these terms may differ, the Court interprets the term “emolument” consistent with the dictionary definitions, i.e.,
“profit,” “gain,” or “advantage.”
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(“[G]overnment is. . . instituted . . . not for the particular emolument or advantage of any single
man.”); John Mikhail, “Emoluments” in Blackstone’s Commentaries, Balkinization, May 28,
(listing instances in which Blackstone used the word to mean “family inheritance, private
employment, and private ownership of land”); John Mikhail, A Note on the Original Meaning of
“Emolument,” Balkinization, Jan. 18, 2017,
examples of the Framers—including Jefferson, Washington, and Madison—using the word to
refer to “the consequences of ordinary business dealings”); Himley v. Rose, 9 U.S. (5 Cranch) 313,
318–19 (1809) (Johnson, J.) (“profits and advantages” from land ownership)).
On the other hand, Plaintiffs submit that the definition advanced by the President— “profit
arising from an office or employ”—was far less common. Citing the Mikhail article, Plaintiffs
assert that while the definition they advance can be found in virtually every founding-era
dictionary, the President’s definition appears in less than 8% of these dictionaries. Id. at 32 (citing
Mikhail, The Definition of “Emolument,” supra, at 1–2). This, according to Plaintiffs, confirms
that the President’s narrow definition was not the ordinary meaning of the term “emolument” that
voters of the time would have understood.
In response, the President invites the Court’s attention to alternate sources that he claims
define “emolument” as a “profit arising from an office or employ.” Def.’s Mot. Dismiss at 34
(citing Barclay’s A Complete and Universal English Dictionary on a New Plan (1774); 1 John
Trusler, The Difference, Between Words, Esteemed Synonymous, in the English Language; And,
the Proper Choice of Them Determined 154–55 (1766)). The President submits that the use of the
term to refer to receipt of value for one’s services rendered in an official capacity is consistent with
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 24 of 52
these particular contemporaneous dictionary definitions. Id. at 34-35. In fact, he cites examples
from the Oxford English Dictionary as far back as 1480,1650, and 1743, providing as one of two
definitions: “[p]rofit or gain arising from station, office, or employment; dues; reward,
remuneration, salary.” Id. (citing Oxford English Dictionary, Oxford University Press,
Emolument, OED Online (Dec. 2016), http://www.oed.com/view/Entry/61242).
The President also criticizes Plaintiffs’ “mechanical counting of dictionaries,” noting that
the Mikhail article fails to account for frequency of usage. Def.’s Reply at 17. He argues that at the
time of the Nation’s founding, an “emolument” was a common characteristic of federal office,
described by the Supreme Court as “every species of compensation or pecuniary profit derived
from a discharge of the duties of office.” Def.’s Mot. Dismiss at 31 (quoting Hoyt v. United States,
51 U.S. 109, 135 (1850)). In light of this view of contemporaneous common usage, the President
asserts that his definition is more likely the original public meaning of the term.
His narrower definition, the President says, is also closely related to the etymology of the
word “emolument,” which references “profit from labor” or “profit from grinding corn.” Id. at 35
(citing Walter W. Skeat, An Etymological Dictionary of the English Language 189 (1888)
(emolument: “profit, what is gained by labour”); The Barnhart Dictionary of Etymology 326
(1988) (emolument: “n. profit from an office or position. 1435, in Proceedings of the Privy
Council; borrowed through Middle French émolument, and directly from Latin émolumentum
profit, gain, (originally) payment to a miller for grinding corn, from émolere grind out (é-out +
molere to grind; see MEAL grain)”)). Because Plaintiffs, and the Mikhail article upon which they
rely, ignore dictionaries that include variations of this etymologically rooted definition, the
President claims they significantly understate the percentage of dictionaries supporting his
position. Def.’s Reply at 18-19.
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The President argues that Plaintiffs “expansive construction is further undermined by a
proposed constitutional amendment that would have extended the prohibitions of the Foreign
Emoluments Clause to all private citizens.” Def.’s Mot. Dismiss at 44. Specifically, the
amendment, which was proposed in 1810, would have prohibited any citizen of the United States
from accepting, without the consent of Congress, “any present, pension, office or emolument of
any kind whatever, from any emperor, king, prince or foreign power.” Def.’s Mot. Dismiss at
44-45 (citing Proposing an Amendment to the Constitution, S.J. Res. 2, 11th Cong., 2 Stat. 613
(1810)). The consequence of doing so, under the proposed amendment, would have been
revocation of one’s citizenship. Id. While acknowledging that no debates were held on this
proposed amendment, the President contends that it is “implausible” that the amendment would
have been understood to revoke the citizenship of anyone who might be engaged in commerce
with foreign governments or their instrumentalities. Id. at 45. The original public meaning of
“emolument,” he concludes, could not therefore be as broad as Plaintiffs propose.
Again, in the Court’s view, Plaintiffs carry the day.
The clear weight of the evidence shows that an “emolument” was commonly understood
by the founding generation to encompass any “profit,” “gain,” or “advantage.” Though the Court
agrees that mere counting of dictionaries may not be dispositive, it nonetheless remains highly
remarkable that “every English dictionary definition of ‘emolument’ from 1604 to 1806 relies on
one or more of the elements of the broad definition DOJ rejects in its brief.” Mikhail, The
Definition of “Emolument,” supra, at 1-2.25 Moreover, “92% of these dictionaries define
‘emolument’ exclusively in these terms, with no reference to ‘office’ or ‘employment.’” Id. No
In writing his article, Professor Mikhail looked at “how ‘emolument’ is defined in English language dictionaries
published from 1604 to 1806, as well as in common law dictionaries published from 1523 to 1792. To document its
primary claims, the article includes over 100 original images of English and legal dictionaries published between 1523
and 1806.” Id.
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less important is the fact that even the few sources that do reference an office or employment as
part of their definition of “emolument,” include as well the definitions of “gain, or advantage,” a
point the President fails to address in his pleadings. Id. at 8 n.26 (noting that Barclay’s full
definition of “emolument” is “profit arising from profit or employ; gain or advantage.” (emphasis
added)). Further, the President relies heavily on two pre-Constitutional Convention sources,
Barclay (1774) and Trusler (1776), despite the fact that, as Professor Mikhail points out, there is
“little to no evidence” that either of these two dictionaries “were owned, possessed, or used by the
founders.” Mikhail, The Definition of “Emolument,” supra, at 13 (noting that “neither of these
dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online
database, which makes publicly available the papers of the six most prominent founders.”). On the
other hand, in the four dictionaries which have been deemed by Justice Antonin Scalia and Bryan
A. Garner as “‘the most useful and authoritative’ English dictionaries from 1750-1800,”26
“emolument,” consistent with Plaintiffs’ view, is variously defined as “profit,” “gain,” or
“advantage.” Id. at 18 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 419 (2012)).
In addition to its broad meaning in a far greater number of founding-era dictionaries, the
term “emolument” was also used in a broad sense in eighteenth century legal and economic
treatises. As Professor Mikhail points out, in his Commentaries on the Laws of England,
Blackstone uses the word “emolument” on at least sixteen occasions, the majority of those not tied
to the performance of official duties or public office. See Mikhail, “Emolument” in Blackstone’s
Commentaries, supra, (listing examples). Blackstone, for example, refers to the benefits of
Those dictionaries are: Samuel Johnson, A Dictionary of The English Language (1755); Nathan Bailey, A Universal
Etymological English Dictionary (1721); Thomas Dyche & William Pardon, A New General English Dictionary
(1735); and John Ash, The New And Complete Dictionary Of The English Language (1775). See Mikhail, The
Definition of “Emolument,” supra, at 14-18.
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third-party beneficiaries as “the emolument of third persons,” discusses the “emoluments arising
from inheritance,” and references “pecuniary emoluments” in the context of bankruptcy. 2
William Blackstone, Commentaries on the Laws of England *30 (“The thing given in lieu of tithes
must be beneficial to the parson, and not for the emolument of third persons only”) (emphasis
added); *76 (“The heir, on the death of his ancestor, if of full age, was plundered of the first
emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of
the whole of his estate during infancy.”) (emphasis added); *472 (“[W]hereas the law of
bankrupts, taking into consideration the sudden and unavoidable accidents to which men in trade
are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon
condition they surrender up their whole estate to be divided among their creditors[.]”) (emphasis
Similarly, Adam Smith in his The Wealth of Nations—a treatise which the Framers were
unquestionably well aware of28—used the term “emolument” twice to refer to instances involving
private market transactions. See 1 Adam Smith, Inquiry into the Nature and Causes of the Wealth
of Nations 92 (9th ed. 1799) (“The monopolists, by keeping the market constantly under-stocked .
See also id. App. §§ 1, 2 (discussing conveyances of land together with all “privileges, profits, easements,
commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever”) (emphasis added); 1
Blackstone, *106 (“[W]hereby the whole island and all its dependencies, so granted as aforesaid, (except the landed
property of the Atholl family, their manorial rights and emoluments, and the patronage of the bishopric and other
ecclesiastical benefices) are unalienably vested in the crown, and subjected to the regulations of the British excise and
customs.”) (emphasis added); id. *470 (“At the original endowment of parish churches, the freehold of the church, the
churchyard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of
the donor, as a temporal recompence to him for his spiritual care of the inhabitants, and with intent that the same
emoluments should ever afterwards continue as a recompense for the same care.”) (emphasis added); 4 Blackstone,
*430 (“emolument of the exchequer”).
Benjamin Franklin, James Madison, Robert Morris, and James Wilson were all known to have referenced Smith’s
book. See, e.g., Brief of Amici Curiae by Certain Legal Historians on Behalf of Pls. at 7 n.19 (Nov. 28. 2017), ECF
No. 69 (Legal Historians Br.) (citing 23 The Papers of Benjamin Franklin 241-43 (1983) (W. B. Willcox, ed.) (noting
that “Smith’s Wealth of Nations” was sent to Franklin); 6 The Papers of James Madison 62-115 (W. T. Hutchinson &
W. M. E. Rachal, eds., 1969) (including “Smith on the Wealth of Nations” in his book list); David Lefer, The
Founding Conservatives 245-246 (2013) (Morris “found Smith’s thought so persuasive . . . that he gave out copies to
members of Congress”); 1 Collected Works of James Wilson 60-79, 73-74 (K.L. Hall & M.D. Hall eds., 2007) (quoting
Smith’s remarks on banking)); Mikhail, The Definition of “Emolument,” supra, at 12 (same).
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 28 of 52
. . sell their commodities much above the natural price, and raise their emoluments, whether they
consist in wages or profit, greatly above their natural rate.”) (emphasis added); 2 Smith, id., at 234
(“[The bank] makes a profit likewise by selling bank money at five per cent agio, and buying it in
at four. These different emoluments amount to a good deal more than what is necessary for paying
the salaries of officers, and defraying the expense of management.”) (emphasis added).
Though the President cites to a Supreme Court decision in support of his claim that his
narrow definition was more commonly used, his reliance on the Court’s language in Hoyt v. United
States, in this Court’s view, is misplaced. In Hoyt, the Supreme Court was interpreting an 1802
statute referring to “the annual emoluments of any collector” of the customs. Hoyt v. United States,
51 U.S. 109, 135 (1850) (citing 2 Stat. 172, § 3 (1802)). Given that the term was tied to a particular
office in that context, Hoyt has no broader teaching for understanding the term “emolument” in the
There is, moreover, a substantial body of evidence suggesting that the founding generation
used the word “emolument” in a variety of contexts reaching well beyond payments tied to official
Starting with the debates leading up to and during the Constitutional Convention, there are
several instances of delegates discussing “emoluments” in a sense that cannot logically be read to
mean simply payment for services rendered in an official capacity. For example, during the
debates in the Continental Congress on the Articles of Confederation, George Walton, a delegate
In fact, as Ms. Sills, a Non-Resident Fellow at Georgetown University Law Center, notes, in contrast to Hoyt, “other
Supreme Court opinions reflect an understanding that the meaning of the term extends beyond compensation
associated with a governmental office.” Sills, supra, at 93 (citing Charles River Bridge v. Warren Bridge, 36 U.S. 420,
586 (1837) (“The proprietors have, under these grants, ever since continued to possess and enjoy the emoluments
arising from the tolls taken for travel over the bridge; and it has proved a very profitable concern.”); Town of East
Hartford v. Hartford Bridge Co., 51 U.S. 511, 516 (1850) (“That with the exception of the time when the bridge of the
petitioners has been impassable, and said town of Hartford has by law been compelled to keep up said ferry, the said
town of Hartford has not made any use of said ferry as a franchise, or derived any benefit or emolument therefrom,
since the year 1814.”)).
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from Georgia, stated: “The Indian trade is of no essential service to any Colony . . . . The
emoluments of the trade are not a compensation for the expense of donations.” “[July
1776],” Founders Online, National Archives, last modified April 12, 2018,
http://founders.archives.gov/documents/Adams/01-02-02-0006-0008 (emphasis added). Later on,
at the Virginia Ratification Convention, Edmond Randolph, when discussing the purpose of the
Foreign Emoluments Clause, used the term in a broad sense, stating “[a]ll men have a natural
inherent right of receiving emoluments from any one, unless they be restrained by the regulations
of the community . . . .” 3 Elliot, supra, at 465 (emphasis added). A logical reading of both
sentences clearly reflects an understanding that “emolument” covers private market transactions,
not merely official ones.
George Washington himself used the term “emolument” frequently in private commercial
contexts consistent with Plaintiffs’ interpretation. See, e.g., ‘‘Proclamation on Intercourse with
British Warships, 29 April 1776,” Founders Online, National Archives, last modified November
26, 2017, http://founders.archives.gov/documents/Washington/03-04-02-0132 (referring to
“wicked Persons, preferring their own, present private Emolument to their Country’s Weal”)
(emphasis added); “Virginia Nonimportation Resolutions, 22 June 1770,” Founders Online,
National Archives, last modified November 26, 2017,
http://founders.archives.gov/documents/Jefferson/01-01-02-0032 (calling for a boycott of sellers
of British and European goods who “have preferred their own private emolument, by importing or
selling articles prohibited by this association, to the destruction of the dearest rights of the people
of this colony.” (emphasis added).30 As President Trump himself notes, Washington’s conduct
“has been accorded significant weight.” Def.’s Mot. Dismiss at 44 (citing Akhil Amar, America’s
For more examples of Washington’s use of the term “emolument,” see Mikhail, The Definition of “Emolument,”
supra, at 19-20 n.117; Legal Historians Br. at 23 n.68.
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Unwritten Constitution 309 (2012) (“Washington set precedents from his earliest moments [as
President] . . . . Over the ensuing centuries, the constitutional understandings that crystallized
during the Washington administration have enjoyed special authority over a wide range of
In fact, it seems that when the founding generation intended “emolument” to refer only to
an official salary or payments tied to holding public office, they did so expressly. For example,
The Federalist Papers, understood to have been penned by Hamilton and Madison, refer to
“emoluments of office.” The Federalist No. 55 (emphasis added). Washington also used this phrase
in his correspondence. See Letter from George Washington to Joseph Jones (Dec. 14, 1782),
Library of Congress Digital Collection, https://www.loc.gov/resource/mjm.01_0833_0835/?sp=2
(“if both were to fare equally alike with respect to the emoluments of office”) (emphasis added).
Ignoring this large accumulation of historical evidence, the President places considerable
emphasis on the failed constitutional amendment proposed in 1810, which sought to revoke the
citizenship of any individual who accepted or retained “emoluments” from a foreign government.
For a proposal that never became law, and apparently underwent virtually no debate by the
Framers, it is doubtful that much, if any weight should be accorded to it. But if nothing else, insofar
as the bill enjoyed any support, it was at the very least reflective of the extreme concern of its
proponents over the potentially corrupting influence of payments from foreign governments.
In the Court’s view, the decisive weight of historical evidence supports the conclusion that
the common understanding of the term “emolument” during the founding era was that it covered
any profit, gain, or advantage, including profits from private transactions. Consideration of the
purpose of both Emoluments Clauses confirms the broad interpretation of the term suggested by
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 31 of 52
3) Constitutional Purpose
Plaintiffs argue that even if the meaning of the term “emolument” is deemed ambiguous,
the constitutional purpose of the Clauses indicates that it was Plaintiffs’ broader definition that was
intended. Pls.’ Opp’n at 32 (citing Noel Canning, 134 S. Ct. at 2561). As to the Foreign
Emoluments Clause, Plaintiffs argue that the purpose of the Clause was to prevent the least
possibility of undue influence and corruption being exerted upon the President by foreign
governments. Id. at 34. That is, the Framers created a prophylactic rule to prevent the slightest
chance of such influence. Id. Plaintiffs assert that the President’s narrow interpretation, which they
emphasize essentially boils down to the equivalent of a prohibition against bribery, would
completely erode this aim. Bribery as a crime is very difficult to establish, they point out, and any
requirement that a quid pro quo for official services has to be established would be easy to
circumvent while at the same time difficult to prove. Id. at 42-43. It therefore seems highly
unlikely that the Framers would have wanted to leave a large loophole that would preclude the
Clause from accomplishing any meaningful purpose. Id.
As to the Domestic Emoluments Clause, Plaintiffs argue that it reflects a similar intention
to “eliminate any pecuniary inducement the President might have to betray his constitutional duty
in solely serving the People of the United States.” Id. at 35. Citing The Federalist Papers, Plaintiffs
assert that the Framers worried about any state government or its officials being able to tempt the
President and cause him “to surrender” his “judgment to their inclinations,” while forcing states to
compete with each other to “appeal to his avarice.” Id. (citing The Federalist No. 73 (Alexander
Hamilton)).Thus, say Plaintiffs, it makes sense to infer that the Framers intended the term
“emolument” to sweep broadly. Id. Moreover, because the Domestic Clause only covers
“emoluments” and not “presents” as the Foreign Clause does, Plaintiffs point out that the
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President’s narrow definition of “emoluments,” insofar as it would only cover payments for
official services (i.e., bribery), would permit large—possibly unlimited—cash payments from the
federal and state governments, so long as the payments were made for non-official personal
services or so long as they are characterized simply as non-quid pro quo “presents.” Id. at 43-44.
These concerns, Plaintiffs argue, warrant interpreting “emolument” to encompass essentially
“anything of value.”
The President disputes that either the Foreign or Domestic Clause was intended to have the
broad reach Plaintiffs advocate. Rather than being “comprehensive conflict-of-interest provisions
covering every conceivable type of activity,” he argues that the Clauses were only intended to
prohibit receipt of specifically identified categories of compensation. Def.’s Reply at 21. For
example, he says, the Foreign Emoluments Clause was adopted against the backdrop of a
prevailing custom among European sovereigns to bestow valuable presents upon the conclusion of
treaties. In his view, this concern was reflected in Edmond Randolph’s speech at the Virginia
Ratification Convention where he discussed an incident in which King Louis XVI of France
bestowed gifts on American diplomats. Def.’s Mot. Dismiss at 38-39 (citing 3 Elliot, supra, at
465–66; Thomas Jefferson, Notes of Presents Given to American Diplomats by Foreign
Governments, ca. 1791). The President submits that it is more likely that the Framers wanted to
prevent incidents such as these rather than to prevent federal officials from maintaining private
Similarly, according to the President, the Domestic Emoluments Clause was adopted to
ensure that the President’s compensation would remain unaltered during his tenure, not to prevent
him from acting on the same terms as every other citizen in transacting private business. Id. at 40.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 33 of 52
The President claims that these narrower intentions are supported by the fact that it was
common at the time of the founding for federal officials to maintain their own private businesses.
Def.’s Reply at 21. He argues that, had the Farmers intended to encompass benefits from private
commercial transactions, they surely would have raised this issue. Yet, the President notes, the
debates reflect no concern over constraints on private business. Id.; Def.’s Mot. Dismiss at 40-41.
The President also argues that Plaintiffs’ interpretation would create absurd consequences
today. Def.’s Mot. Dismiss at 51-52. For example, he claims that if the Court were to adopt
Plaintiffs’ interpretation, it would mean that a federal official’s stock holdings in a global company
would violate the Foreign Emoluments Clause if some of that company’s earnings could be traced
to foreign governments. Id. at 52. In light of extremes such as this, the President urges the Court to
reject Plaintiffs’ broad interpretation.
Notwithstanding the parade of horribles the President calls up, the Court does not see how
the historical record reflects anything other than an intention that the Emoluments Clauses
function as broad anti-corruption provisions.
The Foreign Emoluments Clause was unquestionably adopted against a background of
profound concern on the part of the Framers over possible foreign influence upon the President
(and, to be sure, upon other federal officials). It is true that European heads of state before 1787
frequently conferred gifts on foreign statesmen, undoubtedly in many instances for the express
purpose of currying favor with them. See Teachout, Corruption in America, supra, at 1-5. For
example, Charles Coteworth Pinckney, a delegate to the Constitutional Convention from South
Carolina who is credited with providing the final language for the Foreign Emoluments Clause,
when speaking later at the South Carolina Ratification Convention, referred to the bribe of
“Charles II., who sold Dunkirk to Louis XIV.” See 4 Elliot, supra, at 264 (Pinckney discussing the
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 34 of 52
susceptibility of the President to bribes). By the time of the Constitutional Convention, the
delegates were “deeply concerned that foreign interests would try to use their wealth to tempt
public servants and sway the foreign policy decisions of the new government.” Zephyr Teachout,
The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 361 (2009); see also Sills, supra, at 72
(noting that Madison recorded that “15 delegates used the term ‘corruption’; no less than 54 times”
during the Constitutional Convention) (citing James D. Savage, Corruption and Virtue at the
Constitutional Convention, 56 J. Pol’y 174, 174–76, 181–82 (1994)).
Interestingly, during the Convention, the Framers did not include a Foreign Emoluments
Clause in the first drafts of the Constitution. But the omission was soon perceived as being
inconsistent with the Articles of Confederation, which had provided that: “[N]or shall any person
holding any office of profit or trust under the United States, or any of them, accept any present,
emolument, office or title of any kind whatever from any King, Prince or foreign State.” Articles of
Confederation of 1781, art.VI. This provision in the Articles, without a doubt, was drastic.
Apparently in the view of some at the time, such a flat prohibition against any such offerings by
foreign governments could prove needlessly insulting to the foreign powers that only intended by
their offering to express some sort of gratitude to representatives of the United States.
Accordingly, there was a sense that a more flexible provision was needed. And very soon it came
about. In general, federal officials would be prohibited from receiving any such benefits from
foreign governments but, in appropriate circumstances, Congress would still be able to approve
such offerings. See Sills, supra, at 69-71. Once the Foreign Emoluments Clause incorporated this
compromise, it appears to have sailed through the Constitutional Convention. Pinckney introduced
what would become the final language of the Clause on August 23, 1787. As reported by James
Madison, Pinckney’s rationale was to establish “the necessity of preserving foreign Ministers &
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 35 of 52
other officers of the U.S. independent of external influence.” 2 Max Farrand, The Records of the
Federal Convention of 1787 389 (Max Farrand ed., Yale Univ. Press 1911). Joseph Story would
later explain that the Foreign Emoluments Clause was adopted to protect against “foreign
influence of every sort.” Joseph Story, 3 Commentaries of the Constitution 215-16 (1833)
These concerns were carried forward to the ratification debates in the States. For example,
during the Virginia Ratification Convention, in conjunction with a debate over Presidential
elections, Edmond Randolph explained the purpose of the Foreign Emoluments Clause as a
restriction “provided to prevent corruption.” See 3 Elliot, supra, 465. At the same Convention,
George Mason responded, expressing concern that it would be “difficult to know whether [the
executive] receives emoluments from foreign powers or not” and that “the great powers of
Europe” would “be interested in having a friend in the President of the United States.” Id. at 484.
These anti-corruption concerns spilled over as well into discussion of the Domestic
Emoluments Clause. Alexander Hamilton, in The Federalist No. 73, wrote that power over the
President’s salary would allow the legislature to “tempt him by largesses, to surrender at [his]
discretion his judgment to their inclinations.” Hamilton went on to say that “power over a man’s
support is a power over his will.” Id. To combat this potential influence over the President,
Hamilton emphasized that the Domestic Emoluments Clause should be applied broadly to protect
the President’s independence:
They can neither weaken his fortitude by operating on his
necessities, nor corrupt his integrity by appealing to his avarice.
Neither the Union, nor any of its members, will be at liberty to
give nor will he be at liberty to receive, any other emolument
than that which may have been determined by the first act. He
can, of course, have no pecuniary inducement to renounce or
desert the independence intended for him by the Constitution.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 36 of 52
Id. Hamilton’s statements most assuredly reflect a broader concern than merely “ensuring that a
President’s compensation remained unaltered during tenure.” Def.’s Mot. Dismiss at 39.
Given these fundamental preoccupations, the President’s interpretation of the limited
meaning of the Emoluments Clauses cannot be the correct one. Yet again, his narrow
interpretation of the word “emolument” would reduce the Clauses to little more than a prohibition
of bribery which, in addition to already being addressed elsewhere in the Constitution,31 is, as
Plaintiffs argue, a very difficult crime to prove. The recent Supreme Court case McDonnell v.
United States, 136 S. Ct. 2355 (2016), which involved receipt by the Governor of Virginia of
numerous cash and in-kind benefits from a constituent, demonstrates the difficulty of determining
precisely what constitutes an “official act” sufficient to establish a criminal quid pro quo. After
McDonnell, “[t]o qualify as an ‘official act,’ the public official must make a decision or take an
action on that ‘question, matter, cause, suit, proceeding or controversy,’ or agree to do so.” Id. at
2372. Merely “setting up a meeting, talking to another official, or organizing an event” is not
sufficient. Id. How difficult would it be, then, to demonstrate which payments made to the
President by foreign, the federal, or domestic governments were being offered to him in an official
capacity? As Professor Teachout has noted, “[c]orruption, in the American tradition, does not just
include blatant bribes and theft from the public till, [it] encompasses many situations where
politicians and public institutions serve private interests at the public’s expense.” Teachout,
Corruption in America, supra, at 2. Where, for example, a President maintains a premier hotel
property that generates millions of dollars a year in profits, how likely is it that he will not be
swayed, whether consciously or subconsciously, in any or all of his dealings with foreign or
U.S. Const. art. II, § 4 provides: “The President, Vice President and all civil Officers of the United States, shall be
removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 37 of 52
domestic governments that might choose to spend large sums of money at that hotel property?32
How, indeed, could it ever be proven, in a given case, that he had actually been influenced by the
payments? The Framers of the Clauses made it simple. Ban the offerings altogether (unless, in the
foreign context at least, Congress sees fit to approve them).33
Contrary to the President’s assertion that the history surrounding the Clauses’ adoption is
“devoid of concern about private commercial business arrangements,” several State constitutions
adopted prior to the Convention were specifically designed to prevent public officials from placing
their private commercial interests over their duties to the American people. See, e.g., Pa. Const. art.
V (1776) (“That government is, or ought to be, instituted for the common benefit, protection and
security of the people, nation or community; and not for the particular emolument or advantage of
any single man, family, or set of men, who are a part only of that community.”) (emphasis added);
Virginia Declaration of Rights, art. IV (1776) (“That no man, or set of men, are entitled to
exclusive or separate emoluments or privileges from the community, but in consideration of public
services . . . .”) (emphasis added). Though the President places much emphasis on the fact that
As recently reported in the press, the President’s Hotel in Washington “is one of [his] best performing properties.”
The President’s recent financial disclosure listed the revenue of the Hotel at $40.4 million for the 2017 calendar year.
Steve Eder, Eric Lipton, & Ben Protess, Trump Discloses Cohen Payment Raising Questions About Previous
Omission, N.Y. Times (May 16, 2018),
https://www.nytimes.com/2018/05/16/us/politics/trump-financial-disclosure.html. It remains to be seen how much of
that revenue comes from foreign, federal, and domestic governments.
Recognizing the possibility of foreign influence on the actions of federal officials in general, Congress enacted the
Foreign Gifts and Decorations Act, 5 U.S.C. § 7342, which prevents federal employees, including the President, from
accepting any more than a de minimis “gift or decoration,” except in accordance with certain proscribed provisions.
Those provisions require federal officials to file reports of such offerings with their respective agencies, which then
review the filings for compliance with the Act. Id. § 7342(f).
The statute holds interesting implications for the present case. It applies to a “gift” from a foreign
government—essentially synonymous with the term “present” in the Foreign Emoluments Clause—but does not cover
“emoluments.” This seems to suggest that, in enacting the statute, Congress understood that “emolument” had a
meaning separate and distinct from “present” (i.e., gift) in the Foreign Clause.
Further, the statute establishes a procedure for obtaining the approval Congress is required to give under the Foreign
Clause, delegating to various agencies the actual authority to approve a foreign “gift” (i.e., “present”). Any other
“profit,” “gain,” or “advantage” received from a foreign government—as Plaintiffs have appropriately defined
“emolument”—would be left to Congressional approval on a case-by-case basis.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 38 of 52
many of the Framers and early Presidents maintained private businesses that “likely” transacted
with foreign and domestic governments, he offers no evidence confirming this in fact to have been
so. In any event, it must be remembered that the Emoluments Clauses only prohibit profiting from
transactions with foreign, the federal, or domestic governments; they do not prohibit all private
foreign or domestic transactions on the part of a federal official. Absent the least evidence that
early Presidents maintained businesses involving foreign and domestic governments, the
President’s argument in this regard, even if theoretically relevant, is based wholly on speculation.
Finally, the Court does not accept the President’s argument that construing the term
“emolument” broadly would result in the absurd consequences of which he warns. The historical
record demonstrates that the Framers were fundamentally concerned with transactions that could
potentially influence the President’s decisions in his dealings with specific foreign or domestic
governments, not with de minimis situations.34 Clearly “emoluments” such as mutual funds or
“mere stock holdings by a covered official in companies that conduct business globally,” Def.’s
Mot. Dismiss at 52, of the sort that could be traced to a foreign or domestic government are de
minimis. It is highly doubtful that instances such as these could be reasonably construed as having
the potential to unduly influence a public official.35 On the other hand, sole or substantial
ownership of a business that receives hundreds of thousands or millions of dollars a year in
revenue from one of its hotel properties where foreign and domestic governments are known to
stay (often with the express purpose of cultivating the President’s good graces) most definitely
Yet another very familiar Latin precept to the fore: De minimis non curat lex (“The law takes no note of trifles.”).
If, however, the federal official owned a majority stake in a company that transacted extensive business with foreign
or domestic governments or if it could be shown that a foreign or domestic government was using the company as a
conduit to improperly influence the federal official, this would almost certainly no longer be de minimis.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 39 of 52
raises the potential for undue influence, and would be well within the contemplation of the
The Court is satisfied, consistent with the text and the original public meaning of the term
“emolument,” that the historical record reflects that the Framers were acutely aware of and
concerned about the potential for foreign or domestic influence of any sort over the President. An
“emolument” within the meaning of the Emoluments Clauses was intended to reach beyond simple
payment for services rendered by a federal official in his official capacity, which in effect would
merely restate a prohibition against bribery. The term was intended to embrace and ban anything
more than de minimis profit, gain, or advantage offered to a public official in his private capacity
as well, wholly apart from his official salary.
4) Executive Branch Precedent and Practice
In further support of their position, Plaintiffs emphasize that the Office of Legal Counsel
(OLC) and the Comptroller General of the United States37 have consistently interpreted the term
“emolument” to cover “any profits” accepted from a foreign or domestic government. Pls.’ Opp’n
at 36 (citing Applicability of the Emoluments Clause to Non-Gonverment Members of ACUS, 17
Op. O.L.C. 114, 119 (1993)). The Government has reached this conclusion, Plaintiffs emphasize,
even in the absence of “direct personal contact or relationship between the [federal officer] and a
The President has argued that former Secretary of Commerce Penny Pritzker’s stock holdings in Hyatt Hotels,
which foreign and presumably state governments may have patronized, could constitute Emoluments Clause
violations under Plaintiffs’ interpretation. Similarly, counsel has suggested that President Obama’s book sales to a
foreign government, from which he presumably received royalties, could be prohibited based on Plaintiffs’
interpretation of what constitutes “emoluments.” Hr’g Tr. at 27:5-17; 33:2-21. The Court obviously does not have
sufficient facts before it as to those transactions to be able to hypothesize whether or not they involved Emoluments
Clause violations. As far as the Court can tell, no one ever raised such challenges. In any event, the fact that no one
may have challenged these transactions in no way establishes that Plaintiffs’ interpretation of the term “emolument” in
the present case is erroneous.
As to the OLC, see note 16, supra. The Comptroller General heads the Government Accountability Office, an
agency within the legislative branch of the federal government. It carries out audit, evaluative, and investigative
assignments, provides legal analyses to Congress, and issues legal decisions. “Office of the Comptroller General,”
U.S. Government Accountability Office, https://www.gao.gov/about/workforce/ocg.html.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 40 of 52
foreign government.” Pls.’ Opp’n at 36, 47 (citing 17 Op. O.L.C. at 117-119 (concluding that the
Foreign Emoluments Clause applied to federal officers who were also partners in law firms that
did business with foreign governments)). Plaintiffs cite a recent opinion of the Office of
Congressional Ethics (OCE)38 which they claim is directly on point. Id. at 37 (citing OCE Report,
Review No. 17-1147 (June 2, 2017)). In that opinion, the OCE determined that a federal
officeholder’s acceptance of profits derived from the rental of rooms to a foreign government
violated the Foreign Emoluments Clause. Id. Plaintiffs urge the Court to give considerable weight
to these Government opinions, noting that the President has cited no precedent from any of these
agencies applying his narrower definition of “emolument.” Id.
Notwithstanding his inability to cite opinions squarely in his favor, the President insists
that his position is not inconsistent with the Government opinions Plaintiffs cite. Indeed, he says,
the facts underlying many of the opinions on which Plaintiffs rely in fact involved proposed
employment relationships between a federal official and a foreign government. Def.’s Reply at 22.
For example, he says, two of the OLC opinions cited by Plaintiffs concerned the prospective
rendering of personal services by the federal official to the foreign government. Id. (citing
Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations
Act, 6 Op. O.L.C. 156, 156-57 (1982) (a Nuclear Regulatory Commission employee could not “on
his leave time” work for an American consulting firm on a project for the Mexican government
where the firm secured the contract based solely on the employee’s expertise and would pay the
employee using foreign funds); Memorandum from H. Gerald Staub, Office of Chief Counsel,
NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, O.L.C., Re: Emoluments
The Office of Congressional Ethics (OCE) of the U.S. House of Representatives is an independent, non-partisan
entity charged with reviewing allegations of misconduct against Members, officers, and staff of the U.S. House of
Representatives. “Learn about the Office of Congressional Ethics,” Office of Congressional Ethics,
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 41 of 52
Clause Questions raised by NASA Scientist’s Proposed Consulting Arrangement with the
University of New South Wales, at 1 (May 23, 1986), available at
https://www.politico.com/f/?id=00000158-b547-db1e-a1f9-ff7f60920001 (Foreign Emoluments
Clause could apply to NASA scientist accepting a fee for providing consulting services to a foreign
university)). Thus, he claims, the Government opinions upon which Plaintiffs rely are
distinguishable from the instant case.
The President also cites a 1981 OLC opinion and a 1983 Comptroller General decision,
both relating to President Ronald Reagan’s retirement benefits from the State of California, which
he contends, implicitly at least, run counter to Plaintiffs’ position. Def.’s Reply at 24; Def.’s Mot.
Dismiss at 47-48 (citing President Reagan’s Ability to Receive Retirement Benefits from the State
of California, 5 Op. O.L.C. 187, (1981); Comp. Gen. B-207467, 1983 WL 27823 (1983)). In those
decisions, both Government entities determined that while in office, President Reagan could
continue to receive retirement benefits from the State of California, where he had served as
Governor, without violating the Domestic Emoluments Clause. Def.’s Mot. Dismiss at 47.
According to President Trump, these decisions cannot be squared with Plaintiffs’ definition of
“emolument,” since retirement benefits surely fall within “anything of value.” Def.’s Reply at 24.
Historical practice, the President says, supports his position. He points to a business
transaction President Washington had with the Federal Government wherein, as a private citizen,
he purchased several lots of public land at a public sale. Though Washington himself had
authorized the sale and the sale was conducted by the Commissioners of the District of Columbia,
President Trump notes that no one at the time voiced Domestic Emoluments Clause concerns.
This, he claims, indicates that private commercial transactions were not thought as being within
the scope of the Clause. Def.’s Mot. Dismiss at 43 (citing Certificate for Lots Purchased in the
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 42 of 52
District of Columbia (Sept. 18, 1793),
http://founders.archives.gov/documents/Washington/05-14-02-0074). This is especially
important, he submits, because President Washington’s conduct has been accorded great weight in
constitutional interpretation. Def.’s Reply at 26.
Moreover, the President notes, President Washington’s conduct was hardly unique. The
President highlights the fact that many early Presidents engaged in private commerce, suggesting
that it is reasonable to infer that at least some of their transactions must have been with foreign or
state government entities. Id.
The Court finds executive branch precedent and practice overwhelmingly consistent with
Plaintiffs’ expansive view of the meaning of the term “emolument.” The President has not cited a
single Government opinion that conclusively supports his position. He simply submits that his
proposed definition is “not inconsistent” with existing precedent. That sort of argument clearly
does not make the grade. OLC pronouncements repeatedly cite the broad purpose of the Clauses
and the expansive reach of the term “emolument.” See, e.g., Applicability of Emoluments Clause to
Proposed Service of Government Employee on Commission of International Historians, 11 Op.
O.L.C. 89, 90 (1987) (“Consistent with its expansive language and underlying purpose, the
[Foreign Emoluments Clause] has been interpreted as being ‘particularly directed against every
kind of influence by foreign governments upon officers of the United States, based upon historic
policies as a nation.’” (quoting 24 Op. Att’y Gen. 116, 117 (1902) (emphasis omitted));
Applicability of the Emoluments Clause to Nongovernment Members of ACUS, 17 Op. O.L.C. 114,
121 (1993) (“The language of the Emoluments Clause is both sweeping and unqualified.”);
Memorandum for Andrew F. Oehmann, Office of the Attorney General, from Norbert A. Schlei,
Assistant Attorney General, Office of Legal Counsel, Re: Invitation by Italian Government to
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 43 of 52
officials of the Immigration & Naturalization Service & a Member of the White House Staff at 2
(Oct. 16, 1962), https://www.justice.gov/olc/ page/file/935741/download (noting “the sweeping
nature of the constitutional prohibition and the fact that in the past it has been strictly construed,
being directed against every possible kind of influence by foreign governments over officers of the
United States.”); see also Sills, supra, at 84-85 (“Longstanding OLC and DOJ opinions dating
back to1902 have embraced this definition.”). The main takeaway from executive precedent stands
in bold relief: The Emoluments Clauses are intended to protect against any type of potentially
improper influence by foreign, the federal, and state governments upon the President.
Further, in line with the purposive analysis when deciding whether a particular
arrangement is constitutional, Government officials have carefully considered the extent to which
the arrangement at issue contains the potential for improper influence.39 When that potential has
been determined to exist, the Government has found Emoluments Clause violations. Take, for
instance, the 1993 OLC opinion cited by Plaintiffs that concerned members of the Administrative
Conference of the United States (ACUS),40 who were also lawyers at private law firms. The
question was whether they could receive partnership distributions from their firms where the firms
received fees from foreign government clients. The OLC concluded that this was prohibited even
though the lawyers “did not personally represent a foreign government, and indeed where they had
no personal contact with that client of the firm.” 17 Op. O.L.C. at 119. In reaching this conclusion,
the OLC stated:
The purposive analysis effectively brings down the President’s argument that “absurd consequences” would result
from Plaintiffs’ interpretation of the term. None of the hypotheticals he cites are of the sort that would suggest the
possibility of improper influence over the President. See discussion in Section III.B.3, supra.
ACUS is a nonpartisan, independent federal agency charged with convening expert representatives from the public
and private sectors to recommend improvements to administrative process and procedure. “About,” Administrative
Conference of the United States, https://www.acus.gov/.
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Because the amount the Conference member would receive
from the partnership’s profits would be a function of the amount
paid to the firm by the foreign government, the partnership
would in effect be a conduit for that government. Thus, some
portion of the member’s income could fairly be attributed to a
foreign government. We believe that acceptance of that portion
of the member’s partnership share would constitute a prohibited
Id. This language directly contradicts the President’s suggestion that there can be no violation of
the Foreign Clause if the federal official is receiving benefits in a private capacity.41
One of the OCE’s more recent opinions leaves little doubt that official action is not
required before there can be an Emoluments Clause violation. In a June 2, 2017, opinion, the OCE
directly addressed the question of whether a federal official’s acceptance of profit derived from the
rental of rooms to a foreign government runs afoul of the Foreign Emoluments Clause. The OCE
concluded that “the term ‘emoluments’ is not limited to payments from a foreign government that
result from an individual’s official duties” but that “the receipt of profit from a foreign government
for rental property may implicate the constitutional prohibition against receipt of ‘any emolument’
of ‘any kind whatever’ from a foreign state.” See OCE Report, Review No. 17-1147 at 12-13 (June
The President falls back on the Government opinions concerning President Reagan’s
California retirement funds, but the Court finds those decisions easily distinguishable. As
Plaintiffs suggest, both the OLC and the Comptroller General reached the conclusion that there
were no was no Domestic Emoluments Clause violation after determining that the retirement
Though the OLC subsequently reconsidered its conclusion in this case on the ground that the private members of
the ACUS were not in fact officials within the meaning of the Foreign Emoluments Clause, it did not revise its
previous analysis that the monies were in fact “emoluments” covered by the Clause. Applicability of the Emoluments
Clause to Nongovernmental Members of ACUS, 34 Op. O.L.C. (June 3, 2010),
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 45 of 52
benefits from his time as Governor Reagan of California had become “vested rights” before he
took office as President Reagan of the United States. See President Reagan’s Ability to Receive
Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 187–88 (1981) (stating the
benefits were “vested rights” rather than “gratuities which the State is free to withdraw.”); Comp.
Gen. B-207467, 1983 WL 27823, at *3 (1983) (reaching the same conclusion because the benefits
were “previously earned,” “fully vested,” and “set by statute”). Both decisions place great
emphasis on whether the benefits at issue would be the type that could potentially influence the
President. Given the vested nature of the retirement benefits prior to Governor Reagan’s
ascendancy to the Presidency, both the OLC and Comptroller General determined that they were
not likely to have any effect. See 5 Op. O.L.C. at 192 (concluding that state pension “benefits are
not emoluments in the constitutional sense,” and their “receipt does not violate the spirit of the
Constitution because they do not subject the President to any improper influence.”); Comp. Gen.
B-207467, 1983 WL 27823, at *3 (finding it “highly unlikely that the President could be swayed in
his dealings with the State of California by the prospect of having his pension diminished or
rescinded by the State.”). On the other hand, profits received from foreign or domestic
governments that patronize the Trump International Hotel for the express purpose of potentially
currying favor with a sitting President present a stark contrast to the fully vested retirement
benefits that then-Governor Reagan earned from the State of California which the State of
California was not free to withdraw.
President Trump’s appeal to historical practice does not aid his argument. As noted
previously, he has provided no evidence—none—that any trading partners of the early Presidents
actually were either foreign or domestic governments. Though he relies heavily on a purported
potential Domestic Emoluments Clause violation by President Washington—the surrounding facts
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 46 of 52
of which are seriously incomplete (e.g., What sort of public auction was held? How was it
advertised? How many bidders were involved?)—as Plaintiffs note, Washington later made clear
that he was “ready to relinquish” the property if necessary, which itself calls into question the
actual relevance of this transaction. See Letter from George Washington to the Commissioners for
the District of Columbia (Mar. 14, 1794), Founders Online, National Archives, last modified
November 26, 2017, http://founders.archives.gov/documents/Washington/05-15-02-0289. In any
event, even indulging the inference that President Trump urges the Court to make regarding
President Washington’s purchase of public land, the Court would not find this single example
substantial enough, when weighed against the vast amount of historical evidence, textual support,
and executive branch precedent to the contrary, to support the President’s narrow construction of
the term “emolument.”
Executive branch precedent and practice have clearly and consistently held, apart from de
minimis instances,42 that both Emoluments Clauses prohibit Presidents from receiving any profit,
gain, or advantage from foreign, the federal, or domestic governments, except in the case of the
Foreign Clause, where Congress approves. Based on precedent from the OLC and Comptroller
General, there would be an exception, at least under the Domestic Emoluments Clause, where the
thing of value received by the federal office holder, after the fashion of the Reagan-California
pension precedent, was fully vested and indefeasible before the federal official became a federal
official, the rationale being that the benefit would lack any potential to influence the federal
office-holder in his decision-making.43
Cf. note 33, supra, regarding the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342.
See pages 45-46, supra.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 47 of 52
For the foregoing reasons, the Court finds the President is subject to both Emoluments
Clauses of the Constitution and that the term “emolument” in both Clauses extends to any profit,
gain, or advantage, of more than de minimis value, received by him, directly or indirectly, from
foreign, the federal, or domestic governments. This includes profits from private transactions,
even those involving services given at fair market value.44 In the case of the Foreign Emoluments
Clause, unless Congress approves, receipt of the emolument is prohibited. In the case of the
Domestic Clause, receipt of any emolument is flatly prohibited.
THE PRESIDENT’S MOTION TO DISMISS
A. Legal Standard
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) will be granted if the allegations in a complaint do not “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he purpose of
Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464
F.3d 480, 483 (4th Cir. 2006) (citation and quotation marks omitted). “[I]n evaluating a Rule
12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in
the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
But again there is the matter of private services compensated at a level above fair market value. If the President’s
definition of “emolument” is accepted, i.e., that it applies only to payments made to him qua President, what is to be
made of payments to the Hotel by foreign, federal, or state governments at a premium over market? See note 14, supra.
According to the President’s attorney at oral argument, the answer is there is nothing to be done. See Hr’g Tr. at
33:22-34:10 (stating that this would not be an Emoluments Clause violation because “[i]t’s just more profit”).
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 48 of 52
B. The Applicability of the Emoluments Clauses
Based on the foregoing, the Court finds that the Amended Complaint states plausible
claims against the President under both the Foreign and Domestic Emoluments Clauses.45
1) Foreign Emoluments Clause Violations
With respect to the Foreign Emoluments Clause, Plaintiffs have alleged that foreign
governments or their instrumentalities have patronized the Trump International Hotel, spending
government funds to stay at the Hotel, eat at its restaurant, and sponsor events in the Hotel’s event
spaces. Am. Compl. ¶¶ 39-43. They have done so in some cases with the express intention to cater
to the good graces of the President. For example, the Amended Complaint alleges that the
Kingdom of Saudi Arabia spent thousands of dollars at the Hotel between October 1, 2016, and
March 31, 2017, and that the Embassy of Kuwait, moving from another private hotel in the
District, held its National Day celebration at the Hotel on February 22, 2017. Id. ¶¶ 40-41.
Plaintiffs allege that the President has received or potentially could receive the profits derived
from these foreign governments through his ownership of the Hotel through the Trump
During oral argument, the President’s counsel claimed that only two alleged violations are before the Court: 1)
Hotel stays by foreign governments; and 2) the General Services Administration (GSA) Lease. Hr’g Tr. at 6:7-15;
43:23-25. However, in the course of their pleadings, Plaintiffs have asserted at least two other possible violations of
the Domestic Emoluments Clause. One pertains to the issue of State government patronage of the Hotel and the other
to tax subsidies granted to the Hotel by the District of Columbia. These allegations do not specifically appear in the
Amended Complaint. But see Am. Compl. ¶ 98 (“Upon information and belief, federal, state, and local governments,
or their instrumentalities, have made and will continue to make payments for the use of facilities owned or operated by
the defendant for a variety of functions. The defendant will receive a portion of those payments, which constitute
emoluments prohibited by the Domestic Emoluments Clause.”). Even so, the Court notes that the President is already
on fair notice as to these two additional allegations by reason of Plaintiffs’ subsequent pleadings. The overarching
purpose of Plaintiffs’ case is to pursue the extent to which any precluded entities may have unduly bestowed actual or
potential benefits upon the President through their patronage of the Trump International Hotel. The specific examples
cited in the Amended Complaint are no more than that—examples. They do not limit Plaintiffs’ ability to inquire only
into the specific examples alleged. It is therefore inaccurate to say that only two possible violations are before the
Court. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Federal Rule of Civil Procedure 8(a)(2) requires
only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the ... claim is and the grounds upon which it rests’ . . . . [It] does not need detailed factual
allegations.”) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Here, Plaintiffs have sufficiently identified the
possibility of these additional potential violations through their pleadings, which should at least permit them to be
further explored on discovery. That said, at some point if need be, the Court will entertain a motion to further amend
the Amended Complaint to embrace these and other appropriately “specific” alleged violations.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 49 of 52
Organization. Id. ¶¶ 29, 34-36. Finally, Plaintiffs allege (and the President does not contest) that he
has not received consent of Congress to receive such monies from foreign governments. Id. ¶ 33.
The Court finds that these allegations plausibly state a claim under the Foreign
2) Domestic Emoluments Clause Violations
Plaintiffs make several claims with respect to the Domestic Emoluments Clause.
The GSA Lease
Plaintiffs allege that the Hotel received an emolument from the Federal Government in the
form of the GSA Lease, which governs the Hotel’s use of the Old Post Office Building in the
District of Columbia, where the Hotel is situated. Section 37.19 of the Old Post Office Lease
states: “No. . . elected official of the Government of the United States . . . shall be admitted to any
share or part of this Lease, or to any benefit that may arise therefrom.” Am. Compl. ¶ 82. Plaintiffs
allege that, before the President’s inauguration, the then-Deputy Commissioner of the GSA
indicated that the President would be in violation of the Lease unless he fully divested himself of
all financial interests in it. Id. ¶ 83. Shortly after his inauguration, the President replaced the Acting
Administrator of the GSA. Id. Plaintiffs allege that several weeks later, on March 16, 2017, less
than two months into his term, the President released a proposed budget for 2018 that increased the
GSA’s funding, while cutting back on other the funding of other agencies. Id. ¶ 84. On March 23,
2017, the GSA issued a letter determining that the President and the Hotel were not in violation of
the Lease. Id. Plaintiffs allege that the GSA’s abrupt about-face position was and is in direct
contradiction of the plain terms of the Lease and that, by determining that the Hotel was and is in
compliance with the Lease, the Federal Government bestowed upon the President an emolument in
violation of the Domestic Emoluments Clause. Id. ¶ 86.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 50 of 52
These allegations plausibly state a claim under the Domestic Emoluments Clause.
Patronage of the Hotel by State Governments
In addition to foreign governments patronizing the Hotel, Plaintiffs claim that at least one
State—Maine—has patronized the Hotel, spending state funds for its Governor and his entourage
to stay at the Hotel and to frequent its facilities during an official visit of those officials to
Washington, including an encounter with the President where Presidential action of interest to the
Governor took place. Pls.’ Opp’n. at 8. Plaintiffs allege on information and belief other States may
have done likewise. See Am. Compl. ¶ 98.
These allegations plausibly state a claim under the Domestic Emoluments Clause.
Tax Concessions from the D.C. Government
Plaintiffs further claim that, in connection with the Hotel, the President has received
substantial tax concessions from the District of Columbia. Pls.’ Opp’n at 12 (noting that “just one
week after the election, the President’s company re-filed a previously dismissed lawsuit against
the District, seeking a reduction in its tax bill for the Hotel.”). At the time of the briefing in this
case, the Trump Organization had only applied for District of Columbia tax concessions. Since
then, the District’s tax authorities, according to a report in the Washington Post, after dismissal of
a previously filed lawsuit, in fact granted the Hotel a reduction in the Organization’s 2018 tax bill,
for a savings of $991,367.00.46
These allegations plausibly state a claim under the Domestic Emoluments Clause.
See Jonathan O’Connell, Tax Official Reduce Trump’s Tax Bill on D.C. Hotel by Nearly $1 Million, Wash. Post
(Jan. 12, 2018),
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 51 of 52
As with their Foreign Emoluments Clause claim, Plaintiffs allege that the President has
received all the foregoing benefits on account of his ownership of the Hotel. Am. Compl. ¶¶ 29,
The Court finds that these allegations, depending on the evidence adduced, would fairly
establish Plaintiffs’ claims challenging the President’s receipt of emoluments from the federal and
state governments under the Domestic Emoluments Clause.
In sum, Plaintiffs have plausibly alleged that the President has been receiving or is
potentially able to receive “emoluments” from foreign, the federal, and state governments in
violation of the Constitution: They have stated viable claims for relief under both the Foreign and
Domestic Emoluments Clauses.
Accordingly, the President’s Motion to Dismiss is DENIED insofar as it pertains to the
claims which the Court has determined Plaintiffs have standing to pursue, viz., that the President
may have violated the Foreign and Domestic Emoluments Clauses of the Constitution insofar as he
is involved, directly or indirectly, with the Trump International Hotel in Washington, D.C.
The Court DIRECTS the parties to promptly consult and within twenty-one (21) days
submit a Joint Recommendation suggesting the next steps to be taken in the case, including
whether any further amendment of the Amended Complaint is necessary, what the time for the
President to file an Answer herein should be, what the general outline of any proposed discovery
should be, and any other matter the parties deem appropriate to bring to the attention of the Court.
The Court will address the President’s Motion to Dismiss the individual capacity claims
against him in a subsequent Opinion.
Congress is not mentioned in the Domestic Emoluments Clause. Consequently, it has no role to approve or
disapprove the acceptance of any “emoluments” a federal official may receive from the federal or state governments.
Case 8:17-cv-01596-PJM Document 123 Filed 07/25/18 Page 52 of 52
A separate Order will ISSUE.
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
July 25, 2018
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