[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]
This article discusses issues and recommendations originally outlined in Good Governance Paper No. 15: Enforcing the Emoluments Clauses.
In Good Governance Paper No. 15: Enforcing the Emoluments Clause, I discussed the inability of the federal government to enforce the emoluments clauses of the Constitution and proposed that Congress pass legislation providing specific enforcement mechanisms through civil or criminal process.
The foreign emoluments clause in Article I, Section 9, Clause 8 of the Constitution prohibits any person holding a position of trust with the federal government from receiving any present, emolument, office, or title from a foreign government. The domestic emoluments clause in Article II, Section 1, Clause 7 of the Constitution prohibits the president from receiving any emolument from the federal government or from any of the states other than the president’s compensation set by Congress.
In December 2021, the U.S. House passed H.R.5314, the Protecting Our Democracy Act. Title III of the Act provides for enforcement of the emoluments clauses by Congress, the Office of Government Ethics, and the Office of Special Counsel.
The Act would create statutory prohibitions on all federal officials’ receipt of foreign emoluments and the president’s receipt of domestic emoluments, parallel to the prohibitions in the Constitution. The Constitutional emoluments clauses of course remain unchanged, but the statutory emoluments provisions are more specific, removing some of the alleged ambiguities and making enforcement easier.
The Act defines an emolument as “any profit, gain, or advantage that is received directly or indirectly from any government of a foreign country, the Federal government, or any State or local government, or from any instrumentality thereof, including payments arising from commercial transactions at fair market value.” In the emoluments clause cases brought by private plaintiffs, including this author in his capacity as Vice Chair of Citizens for Responsibility and Ethics in Washington (CREW), President Donald Trump’s lawyers argued that the definition of “emoluments” was limited to payments in connection with an “office” – e.g., a salary — and did not include commercial transactions. The Act rejects this approach and adopts a broader definition, similar to the definition adopted by the federal district court in Maryland.
The Act also provides that the emoluments prohibition applies to any federal official, whether the emolument is “provided to that person or to any private business interest of that person,” which would eliminate another argument former President Trump made to avoid the Constitutional prohibition — that his businesses were managed by his sons and that they, rather than he directly, received the payments.
The Act further provides that the House or Senate may bring a civil action in the U.S. District Court for the District of Columbia against any person for a violation of the statutory emoluments prohibition. Remedies include disgorgement of emoluments and an injunction against receipt of further emoluments. The case is to be decided by a three-judge panel convened pursuant to 28 U.S.C. Section 2284, and appeal is directly to the Supreme Court with an expedited hearing. It also authorizes the Office of the Special Council and the Director of the Office of Government Ethics to, respectively, investigate alleged violations of and enforce the Act.
The Act would also amend Section 102(a) of the Ethics in Government Act of 1978, the financial disclosure rules for certain senior federal officials, including the president and vice president, that are now made on OGE Form 278. Currently, the Ethics in Government Act does not require disclosure of payments, whether foreign emoluments or others, received by a business owned by the official instead of being received directly by the official. New disclosure rules would close that loophole. This is especially important because intentionally concealing emoluments or anything else on a federal financial disclosure form is a crime under the false statements statute, 18 U.S.C. Section 1001.
The Act does not provide for criminal penalties for violations of the Emoluments Clause, but any false filing or other communication in response to the reporting requirements of the Act, or any false statement in an investigation under the Act, would violate the false statements statute and be a crime.
Finally, a separate provision of the Act addresses the question of what happens if the president commits a crime of any type. Although the better view is that a sitting president can be indicted for crimes, the Department of Justice since Nixon has said that a sitting president should not be indicted because prosecution of a president might interfere with constitutional duties.
To address that tension, the Act provides for delay in the criminal trial of a president or vice president if necessary to accommodate performance of official duties, acknowledging that a president can be indicted while in office. In the event that a president is not indicted while in office, the Act provides for tolling of the statute of limitations during the time the president is in office. In December 2021, Professor Claire Finkelstein and I consulted with the House about this provision and recommended statutory language similar to that recommended in our September 2021 op-ed. This language was included in an amendment to the Act introduced by Rep. Jamie Raskin and passed by the House.
It is not clear what the fate of the Protecting our Democracy Act will be in the Senate. The Senate is as deeply divided along partisan lines as the House. Unlike the House, however, the Senate cannot easily pass legislation by majority vote. Unless a filibuster is avoided, 60 votes may be required to advance legislation to the floor for a vote. The fate of this bill thus may turn on whether Republicans’ acquiescence to presidential power has changed now that there is a Democrat in the White House, and on whether Republicans and Democrats in the Senate can get along well enough to pass any legislation at all.
After the challenging, and at times harrowing, experience of the Trump presidency, the Senate would be well advised to pass this bill which contains provisions for enforcing the emoluments clauses of the Constitution, and other provisions putting sensible constraints on abuse of presidential power. We will see what happens.