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Tip sheet: Invoking the Emoluments Clause

February 8, 2017

Jeremy Mayer

The president and Congress had a beef. He wanted to keep the gifts of horses, pearls, rugs and a shawl from an Arab prince. But Congress said no. It didn’t look right, too much like a bribe.

Instead, “[Congress] said yes to selling [the gifts] and giving the money to the Treasury,” said George Mason University political science professor Jeremy Mayer.

The president was Martin Van Buren and the year was 1840, and the grounds on which Congress acted was a little-known provision in the Constitution called the Foreign Emoluments Clause.

The nation’s founders created the clause to prevent federal office-holders from being bribed by foreign entities, said Mayer, a presidential scholar at George Mason’s Schar School of Policy and Government.

It is back in the news because a watchdog organization of constitutional lawyers called Citizens for Responsibility and Ethics in Washington accused President Donald Trump of accepting personal payments from foreign diplomats and filed a lawsuit claiming Trump was in violation of the Emoluments Clause.

Specifically, foreign diplomats stayed at Trump’s hotel in Washington, D.C.; state-owned companies around the world rent space at Trump Tower in New York; and his real estate projects overseas require regulator approvals from foreign governments.

Without congressional consent, those are considered emoluments.

More recently, the National Taxpayers Union said President Ronald Reagan had violated the Emoluments Clause by accepting pension payments tied to his time as California’s governor. Ultimately it was ruled Reagan could accept the pension.

Those incidents did not lead to court action, Mayer said.

“In history, no one has ever litigated this clause,” he added.

We will find out, if the case goes to trial, if history will be made.

Jeremy Mayer, professor in Mason’s Schar School of Policy and Government, has written several books on the political process, and has a PhD in American government from Georgetown University. He can be reached at 703-993-8223 or jmayer4@gmu.edu.

For more information, contact Buzz McClain at 703-727-0230 or bmcclai2@gmu.edu.

About George Mason

George Mason University is Virginia’s largest public research university. Located near Washington, D.C., Mason enrolls 35,000 students from 130 countries and all 50 states. Mason has grown rapidly over the past half-century and is recognized for its innovation and entrepreneurship, remarkable diversity and commitment to accessibility.