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 circumstances 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 have been advised.
But, the International Emoluments has nonetheless returned to the fore. ABC Information reviews that the royal household of Qatar will present a 747-8 jumbo jet to the Air Drive for its use as Air Drive One. And on the finish of Trump’s time period, the aircraft might be transferred to the Trump Presidential library basis. ABC reviews that White Home Counsel, David Warrington, requested the Division of Justice for an opinion on the present. The opinion has not (but) been made public, however ABC gives this account:
Anticipating these questions, sources advised ABC Information that attorneys 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 just accept the plane as a present and later flip it over to the Trump library, and that it doesn’t violate legal guidelines towards bribery or the Structure’s prohibition (the emoluments clause) of any U.S. authorities official accepting presents “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 will 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 response to sources acquainted with their dedication.
The sources stated 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 present just isn’t conditioned on any official act, it doesn’t represent bribery, the sources stated. Bondi’s authorized evaluation additionally says it doesn’t run afoul of the Structure’s prohibition on international presents as a result of the aircraft just isn’t being given to a person, however relatively to america Air Drive and, ultimately, to the presidential library basis, the sources stated.
It could be helpful to see this opinion sooner or later. It’s not presently posted on the OLC site.
Nonetheless, I can think about what one of many main authorities may be.
In 1963, there was dialogue whether or not Eire may confer honorary Irish Citizenship on President Kennedy. The Workplace of Authorized Counsel offered an opinion on this potential present. Seth Barrett Tillman and I mentioned the present in Half V of our ten-part sequence. 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 may 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. At the least within the brief time period, the certificates must be deposited with the Division of State, comparable to “within the fingers of america Ambassador to Eire.” Schlei noticed that “a customized has developed below which officers of america could settle for international honors tendered to them and subsequently have them deposited within the Division of State.” This practice arose as a result of “it avoids offense to different international locations.” President Quincy Adams and Lincoln apparently adopted this tradition. OLC steered this process would have an effect on “substantial compliance” with the International Emoluments Clause. Congress may enact laws to allow Kennedy to just accept the honorary citizenship.
Schlei proposed an alternate path that will not contain Congress: “the President may in all probability 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 below the Act.
Thus, even when Congress doesn’t act, “the President may in all probability receive the warrant when he not holds workplace.”
OLC didn’t precisely decide to this strategy. The opinion hedges with the phrase “may in all probability.” We’re skeptical of this proposal. Maybe this strategy doesn’t elevate flags for an merchandise of no intrinsic worth, like a warrant of honorary citizenship. Nevertheless, one may think about {that a} President may simply deposit all helpful presents he receives in a “particular” archive, which he can entry as or after he leaves the presidency. There are issues with this strategy. First, the President needn’t even notify Congress he acquired a helpful present. The presents could be quietly given to a diplomat, or to the President himself. Second, the President can quietly deposit the precious present in authorities archives, that are below the supervision of his Secretary of State. Authorities warehouses could be huge and onerous 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 one in every of his subordinates within the State Division to ship the precious present to his personal residence or to a 3rd celebration. 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 option to adjust to the International Emoluments Clause is to let Congress resolve easy methods to 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 stated that the certificates of citizenship could possibly be maintained by the State Division in the course of the President’s time period. And in 2025, OLC stated the aircraft could possibly be maintained by the Air Drive in the course of the President’s time period. In 1963, OLC steered that the State Division may ship the certificates to Kennedy after his time period concluded. And in 2025, OLC (apparently) steered that the Air Drive may 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 have 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 one in every of President Trump’s attorneys in the course of the Part 3 litigation. Warrington’s group argued each that the President was not an “Officer of america” and didn’t maintain an “Workplace below america.” (I recount this litigation a current article for the Mississippi Regulation Journal.) At the least earlier than the Colorado Supreme Court docket, Trump’s counsel appeared to argue that the Presidency was not an “Workplace . . . below america” for functions of the International Emoluments Clause. Scott Gessler defined:
How may you probably imagine a president wouldn’t be a part of the [Foreign] Emoluments Clause? Effectively, I might recommend you stroll into Mount Vernon, and you will note above the fireside a full-length portrait of King Louis . . . the XVI. That was given to George Washington, by the French authorities. And nobody batted an eye fixed, 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 presents are sturdy proof that Washington didn’t view himself as sure by the International Emoluments Clause. We talk about these presents at some size in Half V. Nevertheless, Trump’s counsel earlier than the Supreme Court docket 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 may have an effect on the applicability of Part 3 to President Trump.
