Is Senator Blumenthal Violating the Foreign Emoluments Clause?
Is Senator Blumenthal Violating the Foreign Emoluments Clause?
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Senator Richard Blumenthal is one of the wealthiest members of Congress, [...] In addition to being really rich, Blumenthal is the lead plaintiff in Blumenthal v. Trump, a lawsuit brought by members of Congress against President Trump [...] alleges that Trump is in violation of the Foreign Emoluments Clause
[...]
The Blumenthal plaintiffs therefore assert a simple legal proposition: If a federal officeholder (a) has a financial interest in a business and (b) that business derives revenue from foreign governments, then the officeholder receives prohibited emoluments within the meaning of the FEC. Thus, for example, because (a) Trump has a financial interest in Trump Tower in New York and (b) Trump Tower has at least two tenants owned by foreign states (a Chinese bank and the UAE’s Abu Dhabi Tourism & Culture Authority), Trump “has accepted, or necessarily will accept” prohibited emoluments when those tenants make their lease payments.
[...]
This raises an obvious question. If it is that easy to receive an “emolument,” how is it that this issue has never come up before? After all, the FEC doesn’t just apply to the president or a few senior officials. The Office of Legal Counsel views the clause as applying to all federal officers and employees,
[...]
Under this theory, any government employee who owned all or part of a small business, say a farm, shop or restaurant, would violate the FEC if that business received any revenue, no matter how insignificant, from a foreign government customer. Moreover, it is not immediately apparent why the theory wouldn’t apply to owning shares in a publicly traded company that does business with foreign governments. [...] it appears prior to the Trump era no one thought that mere passive investments, at least, implicated the FEC.
[...]
On the broad reading of the FEC advanced in the Blumenthal complaint, it would appear the senator is currently in violation of that constitutional provision. He has a financial interest in at least one business (the Empire State Building) which receives revenue from at least one foreign instrumentality [China’s People’s Daily newspaper, the official newspaper of the Chinese Communist Party]. By Blumenthal’s own theory, therefore, he is receiving a prohibited emolument.

I suspect this theory will prove too broad to be sustainable. But the question then becomes whether there is a narrower theory that would encompass Trump’s interest in Trump Tower but not Blumenthal’s interest in the Empire State Building. No doubt Trump’s financial interest in Trump Tower is much greater than Blumenthal’s in the Empire State Building. But this would just mean that Trump may be receiving a larger emolument, not that Blumenthal is receiving none.

One might argue that Trump’s role in actually operating and managing Trump Tower means that he is receiving compensation for services, not merely passive or unearned income. [...] But this argument is harder to make since he has turned over all management responsibilities to his children. And if the fact that Trump’s children are managing Trump Tower counts against him for purposes of the FEC, wouldn’t the fact that Blumenthal’s father-in-law and other extended family members manage the Empire State Building likewise be a problem for him?
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http://www.pointoforder.com/2017/08/17/is-senator-blumenthal-violating-the-foreign-emoluments-clause/
http://www.pointoforder.com/2017/08/17/is-senator-blumenthal-violating-the-foreign-emoluments-clause/

Labels: Oleg Zabluda

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