Over the course of a century and a half, the U.S. Department of Justice has issued more than 50 opinions interpreting the constitution’s Foreign Emoluments Clause to protect our republic against foreign government influences. After President Trump was sued for violating the clause, the Department changed its position, and is now protecting Trump's ability to receive money from foreign governments rather than protecting the government itself.

1. Lawyers
Mistaking
a President
for their Client
Kathleen Clark
Association of American Law Schools
New Orleans
January 3, 2019

2. Foreign
Emoluments
Clause

3. no Person holding any Office
of Profit or Trust under [the
United States], 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

4. no Person holding any Office
of Profit or Trust under [the
United States], 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

5. no Person holding any Office
of Profit or Trust under [the
United States], 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

6. no Person holding any Office
of Profit or Trust under [the
United States], 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

7. no Person holding any Office
of Profit or Trust under [the
United States], 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

8. few
court
decisions

9. more
Congressional
enactments

10. 50+
Justice Department
opinions

11. “Office of Profit or Trust”

12. “any present,
Emolument, Office, or
Title, of any kind
whatever”

13. “any present,
Emolument, Office, or
Title, of any kind
whatever”

14. 1993
OLC
opinion

15. law firm
partnership distribution
revenues generated from
firm’s
foreign government
clients

16. “the partnership would
in effect be a conduit”
for foreign governments

17. “from any King, Prince, or
foreign State”

18. “without the Consent of
the Congress”

19. arguments
by
Trump’s
personal lawyers

20. narrow
interpretation
of
“emolument”

21. “payment or other benefit
received
as a consequence
of discharging
the duties
of an office”

22. Justice Department
adopts
Trump’s
narrow
interpretation

23. Justice Department
attempts
to distinguish
1993
OLC opinion

24. “Situations involving
law partners and
their profit sharing
are distinct from
the financial interests
at issue in this case.”

25. cites
Comment to
Model Rule
1.10

26. “a firm of lawyers
is essentially
one lawyer
for purposes of
the rules governing
loyalty to the client”

27. “each lawyer is
vicariously bound by
the obligation of loyalty
owed by each lawyer
with whom the lawyer
is associated”

28. 1993 opinion
prohibited
receipt of money,
not
partnership itself

29. Justice Department
protects
Trump’s
personal
interests

30. Justice Department
abandons
government’s
institutional
interests

31. Lawyers
Mistaking
a President
for their Client
Kathleen Clark
Association of American Law Schools
New Orleans
January 3, 2019