Shortly after President Trump’s inauguration in 2017, he was sued for violating the Structure’s International Emoluments Clause. That litigation stretched the entirety of Trump’s first time period in workplace, however didn’t attain a transparent decision. After Trump’s time period concluded, all of these instances fizzled out. Now, we’re greater than 100 days into Trump’s second time period. And, to my shock, there was zero litigation concerning the International Emoluments Clause. Likewise, there was no litigation following Trump v. Anderson about whether or not Part 3 disqualifies Trump from workplace. I suppose these weren’t the constitutional crises that we had been advised.
But, the International Emoluments has nonetheless returned to the fore. ABC Information experiences that the royal household of Qatar will reward a 747-8 jumbo jet to the Air Power for its use as Air Power One. And on the finish of Trump’s time period, the aircraft will probably be transferred to the Trump Presidential library basis. ABC experiences that White Home Counsel, David Warrington, requested the Division of Justice for an opinion on the reward. The opinion has not (but) been made public, however ABC affords this account:
Anticipating these questions, sources advised ABC Information that legal professionals for the White Home counsel’s workplace and the Division of Justice drafted an evaluation for Protection Secretary Pete Hegseth concluding that’s authorized for the Division of Protection to simply accept the plane as a present and later flip it over to the Trump library, and that it doesn’t violate legal guidelines in opposition to bribery or the Structure’s prohibition (the emoluments clause) of any U.S. authorities official accepting items “from any King, Prince or international State.”
Sources advised ABC Information that Legal professional Basic Pam Bondi and Trump’s prime White Home lawyer David Warrington concluded it could be “legally permissible” for the donation of the plane to be conditioned on transferring its possession to Trump’s presidential library earlier than the top of his time period, in keeping with sources aware of their dedication.
The sources mentioned Bondi offered a authorized memorandum addressed to the White Home counsel’s workplace final week after Warrington requested her for recommendation on the legality of the Pentagon accepting such a donation. . . .
Each the White Home and DOJ concluded that as a result of the reward shouldn’t be conditioned on any official act, it doesn’t represent bribery, the sources mentioned. Bondi’s authorized evaluation additionally says it doesn’t run afoul of the Structure’s prohibition on international items as a result of the aircraft shouldn’t be being given to a person, however relatively to america Air Power and, ultimately, to the presidential library basis, the sources mentioned.
It could be helpful to see this opinion in some unspecified time in the future. It’s not presently posted on the OLC web page.
Nonetheless, I can think about what one of many main authorities could be.
In 1963, there was dialogue whether or not Eire might confer honorary Irish Citizenship on President Kennedy. The Workplace of Authorized Counsel offered an opinion on this potential reward. Seth Barrett Tillman and I mentioned the reward in Half V of our ten-part collection. Right here is an excerpt:
McGeorge Bundy, Nationwide Safety Adviser to the President, requested Legal professional Basic Robert F. Kennedy for recommendation on whether or not the President might settle for this title of honor. In flip, Norbert A. Schlei, the Assistant Legal professional Basic for the Workplace of Authorized Counsel, ready a memorandum opinion. He concluded that “acceptance by the President of honorary Irish citizenship would fall inside the spirit, if not the letter, of” the Structure’s International Emoluments Clause. Not less than within the brief time period, the certificates must be deposited with the Division of State, akin to “within the arms of america Ambassador to Eire.” Schlei noticed that “a customized has developed underneath which officers of america might settle for international honors tendered to them and subsequently have them deposited within the Division of State.” This tradition arose as a result of “it avoids offense to different international locations.” President Quincy Adams and Lincoln apparently adopted this practice. OLC recommended this process would have an effect on “substantial compliance” with the International Emoluments Clause. Congress might enact laws to allow Kennedy to simply accept the honorary citizenship.
Schlei proposed an alternate path that might not contain Congress: “the President might most likely have the doc conferring honorary Irish citizenship delivered to him by the Division of State after he leaves the White Home.” OLC noticed that:
it’s the observe of the Protocol Workplace of the State Division . . . to ship to a former officer who has severed any official relationship with america, upon his request and with out referral to Congress, a present or different mark of honor tendered to him throughout his incumbency and deposited underneath the Act.
Thus, even when Congress doesn’t act, “the President might most likely receive the warrant when he not holds workplace.”
OLC didn’t precisely decide to this method. The opinion hedges with the phrase “might most likely.” We’re skeptical of this proposal. Maybe this method doesn’t increase flags for an merchandise of no intrinsic worth, like a warrant of honorary citizenship. Nonetheless, one might think about {that a} President might simply deposit all useful items he receives in a “particular” archive, which he can entry as or after he leaves the presidency. There are issues with this method. First, the President needn’t even notify Congress he acquired a useful reward. The presents may be quietly given to a diplomat, or to the President himself. Second, the President can quietly deposit the dear reward in authorities archives, that are underneath the supervision of his Secretary of State. Authorities warehouses may be huge and laborious to catalogue—consider the ultimate resting spot of the Ark of the Covenant within the Indiana Jones film. Third, after the President’s time period concludes—and even shortly beforehand—he can direct considered one of his subordinates within the State Division to ship the dear reward to his non-public residence or to a 3rd get together. And few would know what had occurred. The OLC’s workaround can simply bypass the International Emoluments Clauses strictures, assuming the supply applies to the President.
Maybe President Andrew Jackson was proper—the one strategy to adjust to the International Emoluments Clause is to let Congress determine proceed. Any unilateral motion wouldn’t suffice.
In the end, Eire by no means gave Kennedy honorary citizenship.
I see some parallels between the Qatari Jet and the Irish citizenship. In 1963, OLC mentioned that the certificates of citizenship may very well be maintained by the State Division throughout the President’s time period. And in 2025, OLC mentioned the aircraft may very well be maintained by the Air Power throughout the President’s time period. In 1963, OLC recommended that the State Division might ship the certificates to Kennedy after his time period concluded. And in 2025, OLC (apparently) recommended that the Air Power might switch the aircraft to the Trump presidential basis on the finish of Trump’s time period. It’s not clear if Trump would ever take private possession of the aircraft.
Because the excerpt above suggests, Tillman and I had been skeptical about this work-around. After all, there may be nonetheless the brink situation of whether or not the President is topic to the International Emoluments Clause. It’s price noting that David Warrington was considered one of President Trump’s legal professionals throughout the Part 3 litigation. Warrington’s crew argued each that the President was not an “Officer of america” and didn’t maintain an “Workplace underneath america.” (I recount this litigation a current article for the Mississippi Legislation Journal.) Not less than earlier than the Colorado Supreme Courtroom, Trump’s counsel appeared to argue that the Presidency was not an “Workplace . . . underneath america” for functions of the International Emoluments Clause. Scott Gessler defined:
How might you presumably imagine a president wouldn’t be a part of the [Foreign] Emoluments Clause? Effectively, I’d recommend you stroll into Mount Vernon, and you will notice above the hearth a full-length portrait of King Louis . . . the XVI. That was given to George Washington, by the French authorities. And nobody batted a watch, it was by no means seen as a violation of the Emoluments Clause, as a result of nobody thought that it utilized to George Washington, there’s additionally the important thing to the Bastille that was given [to] him by a consultant of the French authorities.
The Washington items are robust proof that Washington didn’t view himself as certain by the International Emoluments Clause. We talk about these items at some size in Half V. Nonetheless, Trump’s counsel earlier than the Supreme Courtroom in Trump v. Anderson didn’t advance this argument.
It’s not clear if the 2025 OLC Opinion addressed the brink query of whether or not the President was topic to the International Emoluments Clause. Something OLC says about this situation might have an effect on the applicability of Part 3 to President Trump.
