Samuel Vincent (Thomson Reuters) has posted Disgorging the Unconstitutional Profit: Restitutionary Remedies for Emoluments Clause Violations in the Modern Presidency on SSRN. Here is the abstract:
The Emoluments Clauses of the United States Constitution—the Foreign Emoluments Clause of Article I, Section 9 and the Domestic Emoluments Clause of Article II, Section 1—represent the Framers’ most explicit structural safeguards against the corruption of federal officeholders by foreign and domestic financial influence. Yet despite their textual clarity and historical pedigree, these provisions have proven virtually unenforceable through conventional litigation. The trilogy of lawsuits brought during the first Trump presidency—CREW v. Trump, Blumenthal v. Trump, and District of Columbia v. Trump—were each dismissed on procedural grounds without any court reaching the merits, and the Supreme Court’s January 2021 vacatur orders ensured that the Emoluments Clauses would remain judicially uninterpreted. This Article argues that the law of restitution and unjust enrichment—specifically, the equitable remedy of disgorgement—provides the doctrinally coherent, historically grounded, and practically viable mechanism necessary to close the emoluments enforcement gap. Drawing on the Restatement (Third) of Restitution and Unjust Enrichment, the Supreme Court’s evolving disgorgement jurisprudence in Kokesh v. SEC, Liu v. SEC, and the pending Sripetch v. SEC, and the longstanding equitable tradition of stripping profits from fiduciaries who breach their duties of loyalty, this Article develops a comprehensive theory of “constitutional disgorgement” and proposes a statutory framework—the Emoluments Accountability and Disgorgement Act—to operationalize this remedy. By eliminating the profit motive for constitutional violations, disgorgement vindicates the Emoluments Clauses’ prophylactic anti-corruption design in an era of unprecedented presidential financial entanglements, from global hotel empires to cryptocurrency ventures.
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