It could be exciting to see a court as heedless as the travel ban courts step up to the plate and “convict” President Trump for violating the emoluments clause. It would be fundamentally unjust and on its face a travesty. Yet it is tantalizing to contemplate the ripple effect such a ruling could have.
Remember the language of Article I, Section, 9, clause 8:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
From this language, it is a plausible and indeed necessary reading that no retroactive approval by Congress can remove the constitutional barrier to accepting emoluments from foreign governments or Kings or Princes. We may wonder how the watchmen who will have discovered this barrier to Donald Trump’s qualification to serve as President slept through the Nobel prize awarded to our past President? But let that slide, for we have in this legal phase of the permanent resistance an opportunity not to be squandered.
Let us note that the constitutional clause attaches not to the article establishing the executive office but rather to the legislative power, Article I. It’s language, therefore, clearly embraces everyone holding any office of profit or trust “under [the United States]” (however insignificant)! By way of example, Karl Racine, the Attorney General for the District of Columbia is such an office holder. Since the District of Columbia is subject to the exclusive jurisdiction of the United States, no matter what degree of autonomy has been extended by Congress.
Suppose, then, that Mr. Racine was in direct receipt of monies from a foreign government or governmental entity. The deed having been done in violation of the Constitution, he would be immediately subject to dismissal from office, if not worse.
The reader will now wonder whether I have performed some intricate research to discover this enormous example of hypocrisy or at least self-contradiction. Fear not! No exiguous labor is required to make this point, or the far wider and more tantalizing point, that such relationship are shot throughout the federal workforce (excluding perhaps only the military).
The fact is, the District of Columbia (like the federal government itself) maintains pension programs that are broadly exposed to funds and bonds that directly involve foreign governments. Voila! For the District of Columbia, for example, the 401a and 457b plans involve investments in PIMCO, Blackrock, Vanguard, MetLife and many others that reflect such exposure. What we have here is not the incidental contact alleged in the case of President Trump but direct financial dependence on foreign governments to significant extent, whether through emerging market bonds, sovereign wealth funds, or otherwise.
The point: Talk about draining the swamp! Suppose that we could send the entire kit and caboodle of the federal bureaucracy and DC government packing, on the strength of a ruling against President Trump! What a sacrifice that would be for him to make to his country’s eternal gratitude!