Andy Grewal (University of Iowa – College of Law) has posted The Foreign Emoluments Clause and the Chief Executive on SSRN. Here is the abstract:
The 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. That clause generally prohibits U.S. Officers from accepting "emoluments" from foreign governments, absent Congressional consent. Several commentators believe that President Trump will inevitably run into this prohibition, given the global business dealings of the Trump Organization. They read “emolument” as referring to any payment received from a foreign government, such that a diplomat’s payment of a room reservation fee at the Trump Hotel establishes a potentially impeachable offense.
This Article argues that the commentators have interpreted emoluments far too broadly. Numerous legal authorities show that that term, as used in the Foreign Emoluments Clause, refers to payments from a foreign government made in connection with the performance of services (office-related payments), rather than any and all payments from a foreign government.
Putting aside definitional issues, vexing questions arise when determining whether an emolument arises in a transaction between a foreign government and a business entity owned or affiliated with a U.S. Officer. This Article examines the limited authorities available and proposes a three-part business entity test to help analyze the problems.
After tangling with the definitional questions related to emoluments and the complications presented by business entities, this Article examines whether the activities of the Trump Organization establish violations of the Foreign Emoluments Clause. It concludes that market-rate transactions between the Trump Organization and foreign governments do not come within the clause. However, payments to the Trump Organization in excess of market rates may establish potentially unconstitutional gifts, emoluments, or bribes. Payments made to President Trump personally in exchange for services would also raise constitutional problems.