Here's how Trump could escape 'emoluments' claims that he's profiting as president

Analysis: Ethics watchdogs and Democrats decried Pence's stay at Trump's golf resort in Doonbeg, Ireland, but it's not clear the Constitution was violated.
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Vice President Mike Pence and U.S. Ambassador to Ireland Edward Crawford, at the ambassador's residence in Phoenix Park, Dublin on Tuesday, Sept. 3, 2019.Peter Morrison / AP

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By Danny Cevallos

Vice President Mike Pence's decision to spend two nights at President Donald Trump's golf resort outside Doonbeg, Ireland, this week — on the opposite side of the country from the official meetings in Dublin — has renewed debate about whether Trump is violating the Constitution’s Emoluments Clauses when the federal government pays to use his hotels.

Pence defended the back-and-forth itinerary by pointing out he had previously visited family in Doonbeg, and stayed at the resort, before Trump was elected president, and he wanted to have dinner on this trip with his family at a pub owned by a cousin. He also said it was necessary to stay at Trump Doonbeg "to accommodate the unique footprint that comes with our security detail and other personnel," and he called the decision "logical."

Ethics watchdogs and Democrats, however, decried the move as another example of what they say is the president's penchant for personally profiting from official business — a criticism that elicited even more explanation after Pence's chief of staff, Marc Short, had said Trump had suggested Pence stay at the club.

Which brings us to the U.S. Constitution. There are two "Emoluments Clauses" in the document. The purpose of these provisions is to prevent corrupt influence on federal officials — a recurring mission of the framers that's evident from the text of the rest of the Constitution (for example, the two specifically identified "high crimes" warranting impeachment are not crimes of violence or theft, but of corruption).

The Foreign Emoluments Clause provides that no U.S. official shall "accept" any "present, Emolument, Office, or Title ... from any ... foreign State." The Domestic Emoluments Clause says the president shall receive "Compensation" for his "Services" but not "any other Emolument" from the United States or any state.

"Emolument" is an outdated word — largely unknown to the public in a pre-Trump era. If broadly defined, it could mean a benefit of any kind, paid to any entity related to the president from which he profits. Narrowly defined, it might mean only the compensation received for "personal performance of services" as an employee of that entity.

The definition of this outmoded word ultimately adopted by the courts will be critical.

At first glance, this Pence controversy might appear to be a Foreign Emoluments Clause issue because the Trump hotel is in Ireland. But the fact that the U.S. government is paying for the stay makes it more likely a Domestic Emoluments Clause issue.

Litigation related to the domestic provision is pending in several federal courts and deals with similar issues. Among these is whether Trump International Hotel's continuing lease with the General Services Administration (the federal government) violates the Domestic Emoluments Clause. Another issue is whether the provision is implicated when a state (e.g., Maine) spends money at the hotel, and also when the substantial tax concessions are received from the District of Columbia.

These examples are closer to the Pence-Doonbeg situation, because the benefit is coming from state and federal governments and not foreign powers. At least one court has suggested that these instances are receipts of emoluments from the federal and state governments under the Domestic Emoluments Clause.

Assume for the moment that the payment by the federal government to the Trump hotel in Ireland is the same as the Trump hotel in Washington receiving emoluments from the state of Maine. This is where the definition of "emolument" becomes critical. A broad definition could be a problem for the president: Maine's money is a benefit, Trump owns the hotel, Trump receives a benefit from Maine, and the Domestic Emoluments Clause is violated.

But a strict definition of the word leads to a different conclusion, one in Trump's favor: Because Trump himself was not bringing up room service or turning down the beds in Ireland, the president himself was not being compensated for the personal performance of services when the U.S. government paid for Pence's stay in Ireland.