As the world continues to get used to an America with a President Donald Trump at its head, the binary nature of the current political climate has reared its own head in unfortunate ways. One example of this is the stunning speed with which many of those previously ignorant of the emoluments clause of the Constitution, as the Title of Nobility Clause is commonly called, have feigned familiarity with it. As one of my colleagues here termed it, the "emoluments hunting" going on is transparently political in nature, rather than representing a serious effort at protecting the public interest from the shadow of undue influence and sanctioned bribery over our highest political office.
Both sides of the American aisle are badly misusing this important constitutional text. Those whose skin might crawl at the mere words "President Trump" seem to find emoluments violations everywhere, even in the most trivial of cases. Trump himself, of course, hasn't helped in the matter, even when he easily could, as he has shirked the norms of disentangling the presidency from the previous life of he who holds that office. Trump, you will recall, has distanced himself from the decision-making aspects of the family business, but not the profits of it. It's an important distinction, which we'll get into in a moment.
But first, for the sake of context, let's start with the text of the emolument clause, as well as the framers' reasons for its inclusion in the highest law of our land. The text itself is blessedly short and seemingly simple.
No title of nobility shall be granted by the United States: and 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.
The purpose for the clause was stated explicitly by Alexander Hamilton in the Federalist Papers.
"One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."
That's pretty straight forward. To prevent the corruption of those in office, those who hold office are restrained from accepting titles, gifts and remuneration from foreign states or foreign leaders. Now, Trump and his allies have claimed repeatedly that the clause does not apply to the President. To do this requires a tortured reading of the clause itself, the blatant ignoring of its intention, as well as a peculiar emphasizing of certain historical events. For example, an oft-cited "proof" of the claim is that Hamilton himself responded to a request by Congress for a list of all persons holding office in the United States, as well as their salaries, with a list consisting only of those officers appointed, while omitting anyone who held elected office. When you have to reach that far back to such a simultaneously tangential and trivial historical instance to argue that a President should be allowed gifts from foreign governments, you don't have much of an argument at all.
And that debate has taken on a certain amount of primacy at present, because for all of the "emoluments hunting" currently going on, there are some very real instances where the raising of the clause is perfectly valid. One of those intersects nicely with a subject we discuss here regularly: trademarks. Chinese trademarks, specifically, now that President Trump, the businessman, has managed to win trademark rights in China after a long slog of a fight that only turned in his favor when he became Donald Trump, the President.
In the context of the entire point of the emoluments clause, it cannot be stressed enough just how long this fight has been going on.
In 2006, Trump applied for a trademark for “Trump” in connection with a company providing construction services in China. China’s Trademark Office rejected the application, on the grounds that someone else (Dong Wei) had filed a similar application about two weeks earlier, and had priority under China’s first-come-first-served trademark rule.*
* There are, apparently, more than 200 other “Trump” marks on the Chinese trademark register — for everything from Trump toilets to Trump pacemakers, Trump condoms and even a “Trump International Hotel” — that have been claimed by persons other than Trump (or any of the Trump Organizations). This, as all good trademark nerds will recognize, is a concrete illustration of a common problem in “first-to-file” jurisdictions, where it can be relatively easy to “reserve” a mark by filing an application, without evidence that you are actually using the mark in question.
Since that initial rejection in 2006, the Trump business has appealed the decision all the way up the Chinese legal ladder, and lost at every turn. The last loss his business suffered on the matter came in May of 2015, shortly before Trump declared his candidacy for President. The rulings, again, only went in one direction against Trump the businessman, and that was a losing direction.
Suddenly, in April of last year, Trump suddenly went back to the Trademark Review and Adjudication Board, which had ruled against his appeal of the original rejection of his trademark application, and asked it to simply review its previous decision. Strangely, the Review Board suddenly reversed course, invalidating Dong's trademark. Trump's trademark was not codified until November 13th, in the immediate aftermath of his winning the Presidency. Immediately after that, the Trump organization applied for nearly fifty other trademarks in China, all of which are pending.
In the context of this complete reversal, the timing of which coincides with Donald Trump becoming President of the United States, does this register as a violation of the emoluments clause? If we can finally resolve this question about whether the clause applies to the President in a way that preserves both the framers' intentions as well as the realm of common sense, it sure seems to be.
It’s not bribery, exactly, that we’re trying to prevent in this clause. We don’t need a special constitutional provision prohibiting office-holders from taking bribes, because taking bribes is already illegal under the common law, and it is also one of the “high crimes and misdemeanors” for which office-holders can be impeached. But it’s a close cousin to bribery; accepting an emolument introduces an improper element — personal gain — into the decision-maker’s calculus, less obviously and overtly than in cases of actual bribery, but no less serious for that.
And that is precisely the situation Trump is now in. He has 49 additional applications pending before the Chinese Trademark Office. He has been given a nice, valuable gift, and he could be forgiven for thinking that other similar gifts could follow (if he behaves himself well).
It's worth repeating that this question could have easily been avoided had Trump bowed to the norms of the presidency and gone further to divest or partition his office from his business than he has. The only reason we're having this conversation is because our current President made the decision to make such questions relevant. And since Trump currently has the status both of President and businessman, benefits to the one must be considered benefits to the other. The granting of trademarks ought to be included in this, particularly given the circumstances surrounding how and when those trademarks went from being wholly rejected to suddenly being granted.
And for those who would point out that Trump is merely getting his legal benefits under Chinese law, that shouldn't matter.
But why should that matter for purposes of the foreign emoluments clause? If France had had a law that gave all visiting Americans a snuff box (if they came at a certain time to the Hotel de Ville and submitted an application), would Jefferson have been able to keep his? Wouldn’t it have been just as troublesome in those circumstances as an outright gift would have been?
Questions like this were bound to arise after we elected our first billionaire businessman-President. Those questions were assured to exist when that President refused to divest from his business. And we shouldn't look negatively upon our President's previous business success or acumen. But the emoluments clause does exist and, if it is to have any relevant meaning at all, it seems likely that these Chinese trademarks violate it. If nothing else, perhaps cases such as these will finally bring legal clarity to whether the clause applies to the President, because that's a question that is practically begging to be answered at this point.