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No, my friend, we are not talking about hand cream

“Hey honey, my hands are wet, can you pass me my emolument?”

Although that sentence may seem like it could properly be heard in shared bathrooms across America, it cannot. An emolument is not a moisturizer.

Until recently, I’m not sure how many lawyers in America would have known what an emolument is, let alone the rank and file citizen. Now, however, the term is front and center, in a lawsuit that is sure to be one of the most-watched pieces of litigation of 2017, and perhaps for years to come.

An emolument is basically a payment, although whether it applies to all types of payments or only some may depend on context. It’s the constitutional context that is now in play.

Article I, Section 9 of the U.S. Constitution provides, that “…no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

It was in an attempt to avoid the question of the scope and applicability of this clause that caused modern American presidents to adopt the practice of putting their assets into a blind trust while in office, so that the trust, and not themselves personally, would be the beneficiary of any foreign action that led to profit.

The thought behind the action has been that the constitutional provision was basically an anti-bribery device, and that if a president doesn’t know about a payment, there can be no bribery impact.

When Donald Trump was elected president however, he eschewed the idea of such a blind trust, stating that such a thing was not constitutionally required. The president is correct in that view.

However, absent that legal wall of separation, the question of whether the payment of monies accepted by a company or other business interest owned by the president or from which he benefits is constitutionally prohibited comes into play. If a Trump hotel in Miami makes a profit off a Saudi prince’s stay in their top of the line suite, is the constitution violated? We shall soon find out.

Last month a not-for-profit “ethics watchdog” filed a complaint in New York federal court claiming that payments by foreign government officials to hotels owned by Trump or other Trump companies violates the constitution.

The lawsuit asks the court to decide the meaning, scope and reach of the “Emoluments Provision” of the constitution and to block Trump owned or controlled businesses from accepting any money from foreign governments, directly or indirectly, regardless of the payer, the purpose, or the nature of the payment.

The plaintiff claims that the constitutional provision is properly read broadly so that any payment, regardless of whether it is for market-priced products or services or is a diamond handed to the president in the oval office, is covered.

Others, however, have voiced a belief that the provision is properly read with its anti-bribery purpose in mind, and that payments made in due course on terms no different than other purchasers are outside the scope of the prohibition.

Although many Americans will no doubt find the fight to be over those “legal technicalities” that the masses have come to hate, the case actually presents a significant question of where the slippery road begins and ends. The result, if judicially rendered, could have long-enduring consequences.

Of course, the plaintiff in the current suit is not without some technical issues of its own. A big one will be whether it even has the right to complain. In order to sue, a plaintiff must show it has been harmed by the action it contends to be improper. How has an ethics “watchdog” group suffered harm?

The lawsuit claims that they are being “forced” to seek the interpretation, which is using up its assets that it could otherwise use. However, the argument seems to argue that it should be able to sue, because it is suing – an interesting but somewhat circuitous theory. If they get bounced however, there will undoubtedly be other challengers ready to try to take up the fight.

Regardless of whether this or any other plaintiff is found to have standing to complain, the fight may still be short-lived.

The constitutional provision only prohibits the acceptance of emoluments “without the Consent of Congress.” With the current Congress now firmly in control of a Republican majority, there will be a strong possibility that Congress will decide the issue, rather than the court.

All that would be required would be for Congress to take action, spearheaded by the Republican majority, to “consent” to the acceptance of certain specified types of payments to certain specified types of businesses. The issue would be put to rest – at least for now.

Although Congress may address the initial question by consenting to payments, “answering” the question through congressional consent will simply lead to other questions (sort of like cutting off the leg of a Tim Burtonesque creature, only to see five more legs grow back). For example, the next question will be, “how long does consent last?” Can it be given in advance, or does it have to be on a transaction by transaction basis?

If it can be given in advance, will the two year elections require the “new” Congress to again consent, or will a prior consent be sufficient unless revoked? Can blanket consent be made irrevocable?

The questions will snowball unto themselves, until any right-thinking person has a headache of gigantic proportions. At which point, he or she will undoubtedly be forced to find the nearest old-style pharmacist and ask him to make up a special emolument to address the ailment forthwith.

1201kramer1: Attorney Charles Kramer. KAREN ELSHOUT/photo© 2017. UA Distribution, LLC under analysis is a column from the Levison Group. Charles Kramer is a principal of the St Louis based law firm, Riezman Berger, P.C. Comments about this column can be sent to Missouri Lawyers Media editor Fred Ehrlich at fehrlich@molawyersmedia.com or to the Levison Group at comments@levisongroup.com
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