Some critics of President Trump have accused him of violating the Constitution’s ban on presidents accepting emoluments from foreign interests, noting that foreign entities regularly book rooms and hold events at his Trump International Hotel in Washington, D.C. Trump’s defense against these allegations hinges in large part on a narrow definition of “emoluments.”
But if an amicus brief by a couple of scholars is correct, the president can stick a metal fork in that argument (you’ll see why that’s kind of funny in a minute).
Trump is being sued by the attorneys general for Maryland and Washington, D.C., who argue that the payments from foreign visitors who stay at Trump International fall under the emoluments ban. They also argue that Trump, by holding the lease for the hotel from the federal government, violates Article II Section One of the Constitution, which limits payments to a president from the federal or state governments to his salary.
The president can stick a metal fork in that argument.
Not so, the Justice Department argues in defending the president. Any cash Trump receives is simply the results of business transactions, Justice asserts. And besides, emoluments refers to payments related to the president’s official capacity, not as a private businessman.
“Neither the text nor the history of the Foreign Emoluments Clause shows that the term ‘Emolument’ was intended to reach benefits arising from a President’s private business pursuits having nothing to do with his service to a foreign power in his capacity as President or in a capacity akin to an employee of the foreign power,” the government argued. “Similarly, nothing indicates that the term ‘Emolument’ in the Domestic Emoluments Clause was intended to reach benefits having nothing to do with the President’s service as President.”
Enter the word nerds.
Clark D. Cunningham, a law professor at Georgia State University, and Jesse Egbert, a Northern Arizona University linguist, used a technique called “corpus linguistics” (I know, it sounds like a singer in a punk band) to establish how the word emoluments was used around the time the Constitution was being written (n.b., not everybody is sold on the methodology).
In an amicus brief, they wrote that they discovered that the word had such broad meaning then that it often required a modifier to specify what sort of emolument, or payment, was being discussed. The comparison they used is to the word fork. Most people take “fork” to mean an eating utensil made of metal, which is why we don’t generally put the word “metal” in front of fork — but we do distinguish plastic forks and wooden forks.
Through a search of 95,000 texts from the late 18th century, the scholars found that “emolument was consistently used and understood as a general and inclusive term,” and that it “was modified with additional information, in the form of adjectives and prepositional phrases, approximately twice as often as the average noun.”
The modifiers distinguished “official” emoluments from general emoluments, and private from public ones. Cunningham and Egbert concluded that if the Framers of the Constitution had intended to limit the ban on emoluments to official payments, as the Justice Department insists, they likely would have made that distinction in the text.
But they didn’t.