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District of Columbia v. Trump

United States District Court, D. Maryland

July 25, 2018

THE DISTRICT OF COLUMBIA and THE STATE OF MARYLAND, Plaintiffs,
v.
DONALD J. TRUMP, individually and in his official capacity as President of the United States, Defendant.

          OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         In a previous Opinion[1] 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. Constitution.[3]

         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 respect.

         I. 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 hand.

         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 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 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. 46.

         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 Emoluments Clauses.

         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 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.

         II. STANDARDS FOR CONSTITUTIONAL INTERPRETATION

         The Court begins with a review of the standards for judicial interpretation of a clause in the Constitution.

         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] originalism[10] and original meaning[11] to the purposive approach[12] and the 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 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 Second Amendment).

         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”).

         III. 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 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 Emoluments Clause.

         1) Text

         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 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 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), https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf (Brookings Memorandum).[17]

         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 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, https://www.loc.gov/collections/george-washington-papers/?fa'segmentof%3Amgw2.022%2F& 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 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 Clause].”).

         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 Clause.

         The question remains: What are those restrictions?

         B. “Emolument”

         Having determined that both Emoluments Clauses apply to the President, the Court must now decide what the term “emolument” within them means.

         1) Text

         While both parties begin with the text of the Clauses, they offer significantly different textual interpretations.

         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 intention to influence. Id. at 34-35 n.22. The point is that both types of payments would be covered.

         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 services.

         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[.]”

         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 scope.

         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 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 “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 ...


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