Did George Washington, Thomas Jefferson or James Madison sell agricultural products to a foreign government “instrumentality?”
It’s hard to say, since their surviving plantation records don’t speak to the question. But the Department of Justice, which is defending Donald Trump against a suit filed by various parties including Citizens for Responsibility and Ethics in Washington (CREW), argues that it’s quite likely they did – and this assertion, seemingly arcane more than 200 years later and given the tumultuous state of the world, is key to the all-important question of whether President Trump is breaking the law.
CREW and its co-plaintiffs argue that the president stands in clear violation of the Constitution’s “emolument’s clause,” a provision stipulating that no federal official “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.” In plain English, does Trump’s sprawling business empire benefit directly from commercial agreements with foreign governments or entities chartered by or representing foreign governments? And if so, is he in violation of the Constitution?
Trump’s lawyers believe that the question itself is silly, for surely the founding fathers confronted similar dilemmas. And if they were in violation of the very document that they authored, the Justice Department’s lawyers write, “surely someone would have raised concerns about whether foreign governments or government-owned corporations may have been among the customers of the farm and other products regularly exported by early Presidents. Yet, there is no evidence of these Presidents taking any steps to ensure that they were not transacting business with a foreign or domestic government instrumentality.”
Legal consideration aside, the DOJ’s motion is sorely deficient in its use of history. The question isn’t whether James Madison sold crops to a foreign state entity. (We don’t know.) Rather, it’s why the founders bothered to draft the emoluments clause in the first place, and what ideological worldview guided their thinking. The answer isn’t one that the current president or his lawyers would welcome.
The Emoluments Clause reflected common republican (small ‘r’) wisdom. The founders believed that the new nation should be governed by men who enjoyed sufficient economic wherewithal to place the common good above private, pecuniary concerns. They valued disinterestedness, virtue and independence and feared the day that someone beholden to a foreign or domestic economic power might hold high office.
The Emoluments Clause was a product of the founders’ shared republican ideology. And Donald Trump is the eventuality they feared above all.
The generation of American leaders that fomented the revolution and established the new country shared a common intellectual framework. Grounded in the 18th-century ideology of English Whig opposition to the governing elite at Westminster – an ideology that was itself rooted in the classical Greek and Roman republican tradition – this political dogma was radical in its day. It assumed that society was organic – comprised of men and women of shared background, needs and concerns – and that public affairs should be governed by a natural elite who were independent of economic or political coercion and who would have no trouble subordinating private needs to the commonweal. In a small, relatively homogenous nation comprised mainly of settlers (or descendants of settlers) from northern Europe, concentrated along the eastern coastline, and predominately agrarian, it was easy to believe that there was even such a thing as a commonweal.
When members of the founding generation looked from a distance at Great Britain, they saw a corrupt, increasingly urban and industrial society in which greed, avarice, corruption and self-interest infected the body politic. Such a reality conflicted with the great, ancient republics of Rome and Athens, where “disinterested” statesmen – men who, as the English essayist, Samuel Johnson, described them – were “superior to regard of private advantage; not influenced by private profit” – held sway. In London, government was a tawdry competition between merchants, factory owners, indebted farmers and workingmen who competed for favor or privilege.
This thinking influenced the founders’ approach to government. They believed, as one of George Washington’s admirers put it, that public affairs should be entrusted to men “not so much in pursuit of praise and emolument to yourself as of real good to your fellow creatures.” As Thomas Jefferson and many other founders understood the matter, true republicans were landowners – self-sufficient, yeoman farmers or independent artisans and shop owners who produced what they needed to feed, clothe and shelter their families, who owed no debts, did not depend on another man for wages and were not subject to the “casualties of caprice of customers.”
Most of the original 13 states imposed property or income requirements on the electoral franchise because the governing elite believed that day laborers, tenant farmers and factory employees could not demonstrate sufficient independence. They were bound to their employers, creditors and landlords and unable to act selflessly and in the pure interest of the common good. Government, one prominent theorist offered, should rest with “the better sort because they are less liable to temptations, less fearful of the frowns of power, [and] may reasonably be supposed of more improved capacities than those of an inferior station.”
The founders did not just, or even principally, fear a dependent and self-interested rabble. They believed that powerful despots could leverage their economic and political power to pull strings. They looked with disgust at the random patronage that British nobles bestowed on their supplicants: titles, leaseholds, franchises and contracts. They detected a similar pattern in the way that colonial governors doled out favor – courtesy of the favor they enjoyed, in turn, from their sponsors in London – to “fawning parasites and cringing courtiers,” as Samuel West, a Massachusetts clergyman and patriot, described the dynamic. John Adams similarly frowned on the dependence of weak actors on the “Passions and Prejudices, the Follies and Vices of great Men in order to obtain their Smiles, Esteem and Patronage and consequently their favours and Preferments.” Such lowly sorts had no business governing free men.
Like early restrictions on the franchise, and like the Electoral College – that arcane political instrument that entrusted the selection of the president to a handful of elite white men who were in theory best equipped to exhibit republican virtue and disinterestedness – the Emoluments Clause was very much a product of the founding generation’s shared ideology. That ideology, rooted in the country opposition of English Whigs, rued the day when a foreign despot might influence America’s public affairs through economic exertion, patronage and flattery. Such was the stuff of the dark days of colonial subjugation. It should never intrude upon the noble experiment that was the American Constitution.
In other words, the Emoluments Clause was one of several founding devices that had just such a man as Donald Trump—whose complex business web makes him uniquely susceptible to foreign influence—in mind.
To be sure, the founding fathers didn’t always meet the high standards that they set for themselves. Thomas Jefferson lived wildly beyond his means; he was perpetually in debt to domestic and foreign creditors, as were other revolutionaries – particularly in the Southern tobacco colonies, where plantation owners were often steeply in hock to Scottish factors. George Washington was the model of the farmer-solder-statesman, but he made his considerable fortune in land speculation – a tawdry, commercial affair, including (as Trump’s defenders note) the purchase and sale of western land from the new federal government. It rarely if ever occurred to such men that they were more compromised, less dependent and more “interested” than the common day laborers or employed craftsmen who comprised a fast-growing portion of America’s landscape, and who, in the early Republic, did not always enjoy full political rights.
Hypocrisy is common to every political generation. But President Trump’s lawyers are fighting the wrong historical battle. They’re laboring to demonstrate that even George Washington (!) may have sold farm products to entities affiliated with foreign governments. Thus, who cares if Trump’s kids sign a bunch of deals with foreign governments, or if the bottom line ultimately benefits the president?Everyone does it.
That argument misses the point entirely. The Emoluments Clause was meant to prevent exactly the situation that many of Trump’s critics and skeptics now fear: the elevation to high office of men and women who are deeply indebted to, and economically dependent on, outside actors – worse, still, foreign actors who knowingly use patronage and pressure to make slaves of free men. Substitute Vladimir Putin for King George, and you can effectively resurface the same battle-worn tracts from the 1770s and 1780s.
Does Trump’s business organization owe large debts to lenders aligned with the Kremlin? Do foreign governments extending him favorable leases, expedited or preferable site and permitting rights or direct business expect something in return? Did his senior adviser and son-in-law, Jared Kushner, whose family business is reportedly in dire financial straits, seek financial relief from Russian creditors? And did those prospective creditors anticipate a quid pro quo?
We don’t know the answers to those questions, because the Trump administration and Trump family have been stubbornly opaque in their dealings with the American public. But one thing is clear: The Emoluments Clause was born of profound concern that just such a danger might one day arise, and it is historically illiterate to argue otherwise.
It took more than two centuries for the founders’ worst nightmare to surface. But that’s where we are in June 2017.