Chinese Trademarks And The Emoluments Clause: Do They Intersect In The Trump Presidency?

from the cigar-boxes-and-trump-condoms dept

Fri, Feb 17th 2017 1:45pm — Timothy Geigner

As the world continues to get used to an America with a President Donald Trump at its head, the binary nature of the current political climate has reared its own head in unfortunate ways. One example of this is the stunning speed with which many of those previously ignorant of the emoluments clause of the Constitution, as the Title of Nobility Clause is commonly called, have feigned familiarity with it. As one of my colleagues here termed it, the "emoluments hunting" going on is transparently political in nature, rather than representing a serious effort at protecting the public interest from the shadow of undue influence and sanctioned bribery over our highest political office.

Both sides of the American aisle are badly misusing this important constitutional text. Those whose skin might crawl at the mere words "President Trump" seem to find emoluments violations everywhere, even in the most trivial of cases. Trump himself, of course, hasn't helped in the matter, even when he easily could, as he has shirked the norms of disentangling the presidency from the previous life of he who holds that office. Trump, you will recall, has distanced himself from the decision-making aspects of the family business, but not the profits of it. It's an important distinction, which we'll get into in a moment.

But first, for the sake of context, let's start with the text of the emolument clause, as well as the framers' reasons for its inclusion in the highest law of our land. The text itself is blessedly short and seemingly simple.

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, 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.

The purpose for the clause was stated explicitly by Alexander Hamilton in the Federalist Papers.

"One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."

That's pretty straight forward. To prevent the corruption of those in office, those who hold office are restrained from accepting titles, gifts and remuneration from foreign states or foreign leaders. Now, Trump and his allies have claimed repeatedly that the clause does not apply to the President. To do this requires a tortured reading of the clause itself, the blatant ignoring of its intention, as well as a peculiar emphasizing of certain historical events. For example, an oft-cited "proof" of the claim is that Hamilton himself responded to a request by Congress for a list of all persons holding office in the United States, as well as their salaries, with a list consisting only of those officers appointed, while omitting anyone who held elected office. When you have to reach that far back to such a simultaneously tangential and trivial historical instance to argue that a President should be allowed gifts from foreign governments, you don't have much of an argument at all.

And that debate has taken on a certain amount of primacy at present, because for all of the "emoluments hunting" currently going on, there are some very real instances where the raising of the clause is perfectly valid. One of those intersects nicely with a subject we discuss here regularly: trademarks. Chinese trademarks, specifically, now that President Trump, the businessman, has managed to win trademark rights in China after a long slog of a fight that only turned in his favor when he became Donald Trump, the President.

In the context of the entire point of the emoluments clause, it cannot be stressed enough just how long this fight has been going on.

In 2006, Trump applied for a trademark for “Trump” in connection with a company providing construction services in China. China’s Trademark Office rejected the application, on the grounds that someone else (Dong Wei) had filed a similar application about two weeks earlier, and had priority under China’s first-come-first-served trademark rule.*

* There are, apparently, more than 200 other “Trump” marks on the Chinese trademark register — for everything from Trump toilets to Trump pacemakers, Trump condoms and even a “Trump International Hotel” — that have been claimed by persons other than Trump (or any of the Trump Organizations). This, as all good trademark nerds will recognize, is a concrete illustration of a common problem in “first-to-file” jurisdictions, where it can be relatively easy to “reserve” a mark by filing an application, without evidence that you are actually using the mark in question.

Since that initial rejection in 2006, the Trump business has appealed the decision all the way up the Chinese legal ladder, and lost at every turn. The last loss his business suffered on the matter came in May of 2015, shortly before Trump declared his candidacy for President. The rulings, again, only went in one direction against Trump the businessman, and that was a losing direction.

Suddenly, in April of last year, Trump suddenly went back to the Trademark Review and Adjudication Board, which had ruled against his appeal of the original rejection of his trademark application, and asked it to simply review its previous decision. Strangely, the Review Board suddenly reversed course, invalidating Dong's trademark. Trump's trademark was not codified until November 13th, in the immediate aftermath of his winning the Presidency. Immediately after that, the Trump organization applied for nearly fifty other trademarks in China, all of which are pending.

In the context of this complete reversal, the timing of which coincides with Donald Trump becoming President of the United States, does this register as a violation of the emoluments clause? If we can finally resolve this question about whether the clause applies to the President in a way that preserves both the framers' intentions as well as the realm of common sense, it sure seems to be.

It’s not bribery, exactly, that we’re trying to prevent in this clause. We don’t need a special constitutional provision prohibiting office-holders from taking bribes, because taking bribes is already illegal under the common law, and it is also one of the “high crimes and misdemeanors” for which office-holders can be impeached. But it’s a close cousin to bribery; accepting an emolument introduces an improper element — personal gain — into the decision-maker’s calculus, less obviously and overtly than in cases of actual bribery, but no less serious for that.

And that is precisely the situation Trump is now in. He has 49 additional applications pending before the Chinese Trademark Office. He has been given a nice, valuable gift, and he could be forgiven for thinking that other similar gifts could follow (if he behaves himself well).

It's worth repeating that this question could have easily been avoided had Trump bowed to the norms of the presidency and gone further to divest or partition his office from his business than he has. The only reason we're having this conversation is because our current President made the decision to make such questions relevant. And since Trump currently has the status both of President and businessman, benefits to the one must be considered benefits to the other. The granting of trademarks ought to be included in this, particularly given the circumstances surrounding how and when those trademarks went from being wholly rejected to suddenly being granted.

And for those who would point out that Trump is merely getting his legal benefits under Chinese law, that shouldn't matter.

But why should that matter for purposes of the foreign emoluments clause? If France had had a law that gave all visiting Americans a snuff box (if they came at a certain time to the Hotel de Ville and submitted an application), would Jefferson have been able to keep his? Wouldn’t it have been just as troublesome in those circumstances as an outright gift would have been?

Questions like this were bound to arise after we elected our first billionaire businessman-President. Those questions were assured to exist when that President refused to divest from his business. And we shouldn't look negatively upon our President's previous business success or acumen. But the emoluments clause does exist and, if it is to have any relevant meaning at all, it seems likely that these Chinese trademarks violate it. If nothing else, perhaps cases such as these will finally bring legal clarity to whether the clause applies to the President, because that's a question that is practically begging to be answered at this point.

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Filed Under: china, corruption, donald trump, emoluments, trademark
Companies: trump organization

61 Comments

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Anonymous Coward, 17 Feb 2017 @ 2:03pm

I wonder what the courts will say. This then raises a potentially interesting question: what happens if the courts say this is illegal but congress refuses to impeach? I can't see any good outcomes of that.
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Anonymous Coward, 17 Feb 2017 @ 2:08pm

Streching it...
Did Trump PAY to file to obtain those Trademarks in China?

I won't pretend that there are no potential conflicts of interest here, but under legal ease can "accept" be construed to also include buying something? If so, does this not mean that no President or elected official can buy a single thing from a foreign State EVER?

Seems like stretching to me...

If China gifted them... then yes, it is clearly unconstitutional for Trump to accept them. But if he purchased them...

I don't think this really measures up, but I would be in complete support of this seeing this at Trial.
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Anonymous Coward, 17 Feb 2017 @ 2:10pm

Curious why no mention is made that this longstanding legal issue was resolved months prior to the November election?
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Anonymous Coward, 17 Feb 2017 @ 2:10pm

Re:
All congress needs to do is Approve it and the problem goes away.

Maybe now you will begin to see the devil that Political Parties can cause. Do you one, stand up for your principals and become party fodder, or do you toe the party line?
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discordian_eris (profile), 17 Feb 2017 @ 2:47pm

Did they intersect?
Yes.
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Anonymous Coward, 17 Feb 2017 @ 2:53pm

Pardon if this post is misplaced, but when are you guys going to cover IMDB.com closing their comments section? You seem to have covered everyone else's closings. Why not them?
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AppreciativeResponseTim, 17 Feb 2017 @ 3:06pm

Thanks Timothy
As usual a level headed analysis without name calling and blistering opinions unlike most...
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Anonymous Coward, 17 Feb 2017 @ 3:22pm

Re: Streching it...
'

...of course it is "Stretching it" here ! Absolutely

But,of course, the primary point here is to hammer Trump daily, with whatever dirt can be conjured or imagined against him. Details and validity of the dirt are unimportant as long as it can be used to tar Trump.

This "Emoluments" stuff against Trump is complete nonsense. It was created from thin air by a leftist special interest group --solely to cripple Trump any way they can. The actual court filing is preposterous on its face.

There is no legal precedent on the scope and application of the 'emoluments clause', and legal scholars heavily disagree on what sorts of arrangements would constitute a violation of that clause, and even whether it applies to the President at all. Yet poor Trump is supposed to know and avoid even the slightest appearance of emoluments conflicts. It's all anti-Trump politics.

Think of the thousand other topics that TD could have chosen here today -- but hammering Trump on this trivial Chinese-Trademaks stuff magically rose to the top to of the list. No bias here; No M'am; No Sireee.
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Anonymous Coward, 17 Feb 2017 @ 3:36pm

Part of the question is Trump tge person and Trump companies. If the president has either divested himself or given ip control of those conpanies, then its much harder to prove a personal benefit.

The better question, one that is much more relevant in the United States is if President Trump is sufficiently seperated from gis business interests. Looking at Chinese trademarks is to examine powder burns without mentioning the bullet hole in lady liberty.
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Baron von Robber, 17 Feb 2017 @ 3:50pm

Re: Re: Streching it...
"But,of course, the primary point here is to hammer Trump daily, with whatever dirt can be conjured or imagined against him. "

You've got to be so dense, no light can escape.
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Anonymous Anonymous Coward (profile), 17 Feb 2017 @ 3:58pm

Re:
What is the likelihood of Trump re-taking control (to whatever degree he actually gave up control) of his companies when he does leave office? He gets the benefit then, rather than now, yet he gets the benefit, now, and knows it.

I am not convinced he has given up control of his companies. He may not do much in terms of day to day running them, but I bet he has input on bigger decisions, through those minions he 'vested' control to. Let's just check his current tax records, and compare them to next years...oh...wait...
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Anonymous Coward, 17 Feb 2017 @ 5:11pm

Re: Re: Streching it...
Yes, the President is supposed to avoid (the appearance of) conflicts. Everything else you're whining about is just more whining.
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Anonymous Coward, 17 Feb 2017 @ 5:12pm

Re:
Try reading the article again. Slowly.
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Any Mouse, 17 Feb 2017 @ 5:30pm

The Emoluments clause has actually popped up in almost every presidency. Obama had to ask congress to accept that Nobel prize.

It's not a new issue. It's just that Trump is bucking yet another long held tradition.
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That One Guy (profile), 17 Feb 2017 @ 6:17pm

Re:
If you have a story you want TD to cover, go to either the top or the bottom of the page and click on the 'Submit a story' link. TD can't cover every story however, and the lawsuit against them certainly isn't helping that matter.
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Anonymous Coward, 17 Feb 2017 @ 6:23pm

This is one of the rare times where I completely disagree with Techdirt's stance. While this particular case seems rather...bad, the premise that elected officials shouldn't be able to own trademarks in foreign countries seems like a terrible idea. Trademark just eliminates those with businesses, but the implication is that such would have to extend to copyright and patents as well. That would then lead to a situation in which(in the case of patents) those talented in the fields of medicine, science and engineering would then be effectively barred from elected office (unless they want to give up their inventions).

And copyright is even worse. The list of barred professions would broaden to include pretty much everything: history, philosophy, literature, the social sciences, economics,...

Outside of law, politics and public policy, nobody of any significance to their field could be elected.
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That One Guy (profile), 17 Feb 2017 @ 6:27pm

Re: Re: Streching it...
Damn right, it's always 'Trump this' and 'Trump that', why doesn't TD ever cover all the other current US presidents?

TD's continued insistence to only cover the actions and statements of one of the current US presidents is a clear and obvious sign of anti-Trump bias, and they should be ashamed of themselves for it!
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OldMugwump (profile), 17 Feb 2017 @ 8:01pm

Gifts are not allowed, owning property (even IP), is
If the trademark is a gift of the Chinese government, then he can't accept it.

If the trademark is his (intellectual) property by right under Chinese law (in this case because he was first-to-file), then it's allowed.

Which of the two cases apply may be difficult to say, which is one of the (many) reasons why Presidents have mostly divested themselves of personal business while in office.

Given Mr. Trump's very personal feelings about his business (after all, most of it seems to involve pasting giant letters T R U M P on every possible surface), this was always going to be a problem. But we knew that going in.
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Anonymous Coward, 17 Feb 2017 @ 8:47pm

Re: Did Trump pay?
I believe you will find that all trademarks provided world wide require a payment. That payment will be dramatically less cash than the trademark will be worth to President Tycoon.

He clearly got a benefit, one doubts you could call a trademark in China worth less than a snuffbox.
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Eldakka (profile), 17 Feb 2017 @ 10:28pm

Re: Streching it...

I won't pretend that there are no potential conflicts of interest here, but under legal ease can "accept" be construed to also include buying something?

I think that would depend on whether it was finalised because he was president as opposed to because of the normal process.

For example, if a normal billionaire (is there any such thing?) offered to purchase something (a trademark, a national treasure - e.g. Mona Lisa, Terracotta Army, Tower of London, Ayers Rock, Yellowstone, Chichen Itza, Sphinx, Acropolis, Mecca, Kremlin, Valley of the Kings) but they are all turned down - except for a private purchase by a billionaire who also happens to be the POTUS. That I think might fall under the emoluments clause,
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Anonymous Coward, 18 Feb 2017 @ 5:22am

Re: Re:
"Giving up control" is a red herring.

He still owns the companies. He doesn't have to control them to benefit from corruption. For example, the saudis give his company a sweet-heart deal on some real-estate in Jeddah and then issue a press release to that effect. Straight up bribery and his hands are completely "clean."
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Anonymous Coward, 18 Feb 2017 @ 5:32am

Historical Perspective on Emoluments

"emoluments hunting" going on is transparently political in nature, rather than representing a serious effort at protecting the public interest from the shadow of undue influence and sanctioned bribery over our highest political office.

While that is probably true, it is also irrelevant. The fact is that the emoluments clause is exceptionally broad - it was written in such a way that "emoluments hunting" is dead simple because practically any exchange of value qualifies.

Here's a A Note on the Original Meaning of "Emolument" by John Mikhail professor of law at Georgetown University.
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Anonymous Coward, 18 Feb 2017 @ 6:26am

Re: Streching it...
Com' on now, be honest (at least to yourself) ---- you never even heard of the emoluments clause prior to this Trump kerfuffle; and you never heard of any federal official ever actually prosecuted for violating it. It is really quite novel, right?

Don't you think there might be just a little teensy weensy tiny possibility of partisan politics behind all this now, rather than just the totally pure minded actions of few stalwart defenders of the sacred U.S. Constitution?
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Anonymous Coward, 18 Feb 2017 @ 7:17am

Re:
Why do you think Obama "had" to ask Congress to accept the Nobel Prize? That's a pretty odd think to think considering he didn't ask Congress at all, which kind of shoots Timothy's argument that you have to reach back to Hamilton statement.

Obama asked the DOJ about whether it would violate the Emoluments Clause and they provided a opinion memo that it wouldn't. Given you seem to think he asked Congress I feel the need to point out an opinion from the DOJ, an executive branch organization, is not a decision from Congress or a ruling by a court. https://www.justice.gov/sites/default/files/olc/opinions/2009/12/31/emoluments-nobel-peace.pdf
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Anonymous Coward, 18 Feb 2017 @ 8:29am

Re: Re: Streching it...
Weird, it's almost like past presidents have divested themselves of their businesses, released their tax returns, and haven't been gleefully corrupt.
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Anonymous Coward, 18 Feb 2017 @ 10:33am

Letter vs. spirit o fthe law
If one considers whether we are talking about only single instances of foreign influence, or the collective effect of a variety of influences, article 1 section 9 reflects on almost every issue that TD argues. (and many that nobody is arguing)

It is also fair to say, that almost every abuse of the Federal courts against the bill of rights, is facilitated in some way, by feathering the edges of 1-9 and suggesting it doesn't apply to one particular case.

The fed seems to view 1-9 as a unique monolith of strict interpretation. Foreign influence, (which could reasonably include public multinational companies with foreign shareholders) to them only applies if there is a de facto irrefutable event, with a hotel receipt, cctv, and a paternity test.

While this point has been flogged in the comments section, (still got the cat o' nine) this is the first time I have seen TD take note of 1-9 in any serious way. Article 1 is a prism. If you look at a court decisions through it, fallacies fracture into spectrum, bare for all to see.

All is largely irrelevant however. As Congress will never open up any investigation under article 1 section 9. Most of them would be just as inditable. Which reflects on the American single party, double hustle political system.

But that is a different argument.
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Anonymous Coward, 18 Feb 2017 @ 11:11am

Re: Re: Re: Streching it...
...obviously you know nothing of past Presidents' personal wealth and business interests. Check out LBJ if you want to see what corruption looks like. Somehow the Clintons were completely untainted by any hint of corruption or use of office for personal gain(?) Even Washington/Jefferson/Madison had strong public controversies surrounding their private business interests.
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That One Guy (profile), 18 Feb 2017 @ 6:39pm

Re: Re: Streching it...
As far as I'm aware when the issue of past presidents owning businesses and whatnot came up they did what they could to sever connections between themselves and said businesses to avoid a conflict of interest. Trump... didn't really do this. He handed the reigns of his business to his two sons, and still has a financial stake in it.

With him still involved to that extent it's hardly surprising that he would get extra scrutiny over anything related to it, and while some of the motivation might be partisan a good chunk of the blame would seem to rest right on his shoulders for what he didn't do and could have.
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Anonymous Coward, 18 Feb 2017 @ 8:22pm

Re: Re: Re: Re: Streching it...
Wow, it's almost like you know these things because the press reported on them at the time.
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Anonymous Coward, 19 Feb 2017 @ 12:49am

Re: Re:
Thanks for pointing out that link, I was entirely unaware of it's existence. Why are they being sued (forgot that too)?
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Anonymous Coward, 19 Feb 2017 @ 12:52am

Re: Re: Re:
The email invention thing?
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That One Guy (profile), 19 Feb 2017 @ 2:20am

Re: Re: Re: Re:
Yup. This article is short, but should provide a decent overview of the reason behind the lawsuit, with the second link in that article covering the background more thoroughly.
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Anonymous Coward, 19 Feb 2017 @ 6:34am

Where it sits in the Constitution
Serious question.

The Emoluments Clause is part of article one. Article one covers the legislature. The executive branch is covered under article two.

Wouldn't this mean that the emoluments clause ONLY affects members of the legislative branch?
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That One Guy (profile), 19 Feb 2017 @ 8:54am

Re: Where it sits in the Constitution
I would certainly hope not.

'Foreign governments, groups and individuals aren't allowed to offer questionable 'gifts' to senators and and members of congress, in order to avoid any possible conflict of interest... they can however absolutely offer those 'gifts' to the president' strikes me as all sorts of wrong, even if you are right about the distinction between the clauses and it is technically only supposed to apply to one branch instead of both(or ideally all three).
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Anonymous Coward, 19 Feb 2017 @ 5:59pm

Let me get this straight - people are arguing over this phrase: "...person holding any office of profit or trust..."

I think we can safely say the President is a person holding an office.

But according to many people, Trump holds an office WITHOUT trust. So he's fine. There is no case to answer.
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Dark Helmet (profile), 20 Feb 2017 @ 3:52am

Re: Where it sits in the Constitution
A serious answer.

Article one regularly refers to other members of government beyond Congress. Article one also, when it wants to make it clear its referring to Congress, uses the specific languge of "The Senators and Representatives", such as:

"The Senators and Representatives shall receive a compensation for their services"

But if you're wanting for a simple explanation for why the emoluments clause is in Article 1, I would try to satiate you by pointing out that it's likely because Congress is the body that would be able to DO SOMETHING about an emoluments violation, therefore its in the jurisdiction of the body focused on in Article 1.
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Wendy Cockcroft, 20 Feb 2017 @ 5:52am

Re: Re: Political parties
As I have previously pointed out when people bring up the matter of political parties, people are social animals and tend to work together to achieve what they want. Basically, they'd caucus around shared values, creating political parties again in all but name. This is one of the downsides of proportional representation: parties have to form coalitions in order to govern, i.e. they need to caucus over values they share enough of. Result: governance by compromise.

tl:dr; if we didn't have political parties already, we'd invent them.

In any case the problem here is not political parties per se. What you've got is an authoritarian/fascist/anarchist caucus that has taken over the conservative movement and its main party. This happened because the actual conservatives were more interested in holding power than in standing up to these people, whose populism will keep them in power till the people who voted for them realise they've been conned. This would have happened whether there were official parties or not. It will end when identity politics ends and we stop allowing ourselves to be divided by wedge issues.
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Wendy Cockcroft, 20 Feb 2017 @ 5:55am

Re: Re: Re: Streching it...
There's only one remedy for this, TOG: the Insider Shop needs to start selling Make America Great Again hats, hooded robes, and other Trump merchandise right now. It's the only way to convince the partisans we're not all a bunch of rabid Marxists. Hail Trump! /sarc
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Wendy Cockcroft, 20 Feb 2017 @ 5:57am

Re: Re: Streching it...
Bearing in mind that they who giveth can taketh away, it's a heck of an incentive to do what China wants. Think "trade" and "deficit."
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Wendy Cockcroft, 20 Feb 2017 @ 6:02am

Re:
Erm... so much wrong...

Okay, let's start again, assuming you've re-read the article (please do).

Before: Trump not prez, no get trademark.
After: Trump nearly prez, now get trademark.
After that: Trump now prez, get more trademark.

Is this really a case of "Nothing to see here, move along" or are we talking "Pay no attention to the man behind the curtain?" because I see a guy's bum sticking out suspiciously while the green smoky head is shouting.
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Anonymous Coward, 20 Feb 2017 @ 6:55am

Re: Re: Re: Streching it...
Awww, poor baby.
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Wendy Cockcroft, 20 Feb 2017 @ 7:14am

Re: Gifts are not allowed, owning property (even IP), is
Erm, from the article:

**There are, apparently, more than 200 other “Trump” marks on the Chinese trademark register — for everything from Trump toilets to Trump pacemakers, Trump condoms and even a “Trump International Hotel” — _that have been claimed by persons other than Trump (or any of the Trump Organizations)_.**

Trump (and/or people acting on his behalf) **were not the first to file**. Indeed, existing trademarks are being overturned for Trump's benefit **now that he has become the president** after years of trying to make that happen **when he was _not_ the president**.

This is what we're talking about. He had no "right" under Chinese law, it seems until he looked likely to become president, then after he became president.

While I'd say it is a stretch to call the granting of these trademarks a gift, I would definitely say that the extent to which Trump could be influenced by China depends on how eager he is to see his name on "All The Things!" and reserve the right to use and profit from it to his own organisation.

If he does something they don't like, and they revoke his trademarks to punish him (it could happen!), would he be willing to backtrack to get them reinstated? We're about to find out.
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Wendy Cockcroft, 20 Feb 2017 @ 7:17am

Re: Letter vs. spirit o fthe law
Until such time as the GOP develops a sense of shame (which should be after the voters have woken up during the mid-terms and given them a hammering at the polling booths), that's not going to happen. I tell you it'll be kittens and rainbows till he gets lame ducked, after which they'll throw him under a whole fleet of buses. Watch this space.
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Wendy Cockcroft, 20 Feb 2017 @ 7:18am

Re: Holding office without trust
Can we make this First Word, please?
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David, 20 Feb 2017 @ 7:29am

Is it really a "gift"?
I say that since they are not giving it to him, he's paying for it (likely moreso) as would any other trademark request. He may or may not be getting preferential treatment (again likely similar to any other large corporate entity), but they aren't paying Trump in order to give him any trademarks. There's be a likely substantial cost to Trump in order to get these trademarks, from simple filing fees to the hordes of lawyers filing multiple appeals.
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David, 20 Feb 2017 @ 7:33am

Re: Re: Did Trump pay?
But that is true for anyone that files for trademark protection. Trump is not getting anything different than any other trademark holder in that respect. In fact, the reason one gets trademarks is because it's more valuable that the filing/etc fees to get one.
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David, 20 Feb 2017 @ 7:34am

Re: Re: Re:
Similar to foreign entities donating heavily to the Clinton Foundation?
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Anonymous Anonymous Coward (profile), 20 Feb 2017 @ 8:59am

Re: Re: Re: Political parties
Part of the issue with political parties (as they exist in the US) is the power yielded when deciding who will run. Then, of course, the control exerted by the 'leadership' when it comes time to vote when in session.

Your right that caucuses will form, but those caucuses might be less attuned to following some ideology established by the 'party leaders' in some smoke filled back room (where power is more important than their actual ideology). Caucus A will form over one piece of legislation, and Caucus B will form over another. Because there is no 'mother party', there will be less ability to influence the members of either caucus. That 'mother party' won't be able to threaten support at the next election.

Possibly an even greater control might be a required sunset on all laws, say every seven years. That the next congress might be made up of different representatives will have an influence upon whatever the former congress decided, allowing the country to grow along the lines of ever changing norms. It will work on both the current and the later congress's. We might be able to pass this now, but will it stand up to muster in 7 years?
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Dark Helmet (profile), 20 Feb 2017 @ 9:17am

Re: Is it really a "gift"?
"Is it really a "gift"?"

Hint: something doesn't have to be a gift to violate the emoluments clause. To prove this, you need only read the text of the clause....
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ad_lucem (profile), 20 Feb 2017 @ 9:26am

Although I ultimately agree with Mr. Geigner that the clause does apply to the president, albeit for different reasons, I disagree with Mr. Geigner as to whether Trump’s Chinese trademark registration should, as a matter of law, constitute a violation of Article I. Ultimately, I think Geigner is really just talking about divestiture though, but that's really not that interesting so let's focus on the trademark issue.

The administration argues that the clause doesn’t apply to elected officials, and this argument has significant merit, given the accountability that elected representatives are subjected to. To the hamilton story, Geigner simply waves his hands and says it's not appropriate. This is not persuasive. It’s also just factually wrong (or we’ve missed a lot of opportunities to prosecute presidents for accepting gifts- see http://www.npr.org/templates/story/story.php?storyId=4116572 ). Geigner is right that the clause should apply to elected officials, but not because “historical meaning doesn’t matter.” He’s right precisely because historical meaning does matter. In the modern constitutional parlance of originalism - the text of the document is not bound by the “framers intent,” but rather by the “public meaning” of the text at the time. This understanding means that the Hamilton story is merely a piece of evidence; it’s not dispositive in either direction. The text is much more informative. Given that the clause has no provision limiting its application to only unelected officials, universally accepted canons of construction would apply the clause to all officers, both elected and unelected. As a result, the clause should apply to the president. The difficult part is understanding how it applies.

how it applies...

First, Mr. Geigner misunderstands the clause in a particular way. He confuses two terms-- gifts and rights -- but entirely misses the point of the clause. Gifts have been accepted by presidents throughout our country’s history. (see: http://www.npr.org/templates/story/story.php?storyId=4116572). George Washington received two gifts from France. Nixon received a Soviet hydrofoil in exchange for a Cadillac. FDR. Eisenhower. JFK. Presidents have a storied history of accepting gifts from foreign governments. Both logic and history suggest that these gifts are not what the emoluments clause is about. Nobody would argue that Nixon’s acceptance of a gift from Soviet Russia (of all places) compromised the Office. Gifts (outside of ancient Icelandic law, where gifts require comparable recompense) do not necessarily implicate any concern of corruption or bribery. They can, but it’s obviously not always the case. Each gift should be scrutinized, in context, to see if it triggers any concerns of bribery or corruption.

The clause was invented to prevent corruption and bribery, and within that purpose, the issue of rights must be discussed further. Rights, such as the freedom of speech, association, or tort apply with equal force to all persons within a designated sovereign jurisdiction. Unlike gifts, rights inherently entail an obligation from a government. But so long as the right is enforced equally, the enjoyment of that right is not a bargaining chip for corruption purposes. The question, then, is whether intellectual property rights should be so viewed. For example- if a foreign sovereign has a similar copyright regime to the US, and a US President’s penned works within that sovereign enjoy automatic copyright protection once fixed in a tangible form, the President hasn’t received any special right by that government. The President is merely protected by the laws of that country in the same way that I would be. If the president wished to sell a memoir, protected by foreign copyright law, there would be no ostensible concern of corruption or bribery. This happens all the time, and authors can legally sue in foreign court to protect those rights. Blanket application of copyright law (or any law) for that matter doesn’t implicate the concerns of the clause; there is no risk of corruption or bribery from a president’s enjoyment of universally insured rights.

To demonstrate the point from a different (negative) perspective- imagine that an elected official was invited to give a speech in a country with restrictive speech laws, which the official then violated. Leaving diplomatic immunity to the side for a moment, would we say that the host’s decision to not prosecute the official was an emolument? Probably not -- it would depend upon the arrangement or understanding of the parties. The lesson here is that context matters for gifts and for rights.

Trademarks, on the other hand, are a bit more complicated. Trademark protection doesn’t come from heaven; it’s applied for and, based on market considerations, it’s either granted or denied. I’m no expert on Chinese trademark but, from what I can tell, it has the same basic values of US trademark law-- namely, preventing confusion of goods in the marketplace. Contrary to Mr. Geigner’s constant refrain, trademarks aren’t “gifts,” at least insofar as they are lawfully administered. I admit that I don’t have much confidence in Chinese intellectual property regimes to operate at the same disinterested level that we aspire to in the US. However, Mr. Geigner’s argument isn’t based on anything specific to the regime itself or any notion of corruption on the Chinese end of the relationship -- he claims that foreign trademark protection is a per se violation of the clause. If so, what about patents granted before elected office? Granted during? Applications pending? What about books published previously, but protected by foreign copyright for international sales? If the crux of the inquiry concerns corruption, it seems obvious that each case needs its own individualized attention.

Geigner doesn’t even attempt to grapple with the French hypothetical. It’s a difficult hypothetical, surely, but it demonstrates the virtue inherent in individualized judicial scrutiny. Jefferson’s snuffbox almost certainly passes the sniff-test for corruption concerns, but a sniff-test is nonetheless appropriate for each question/right/asset that is subject to scrutiny under the clause.

As I mentioned earlier, the real concern here is divestiture writ large. All intellectual property rights are assets that have commercial upside, and as a result, elected representatives are subject to conflicts by holding such assets. But the mere fact that a foreign government agrees to enforce intellectual property rights does not, on a per se basis, implicate Article I Section 9.
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Anonymous Coward, 20 Feb 2017 @ 9:42am

Re: Re: Re: Re:
So then at best, Trump is no better than Hillary.

Except that one of the two of them released their taxes...
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Meh, 20 Feb 2017 @ 10:31am

What gets me is all the people upset about the emoluments clause who seem to think that it's of concern now even though they couldn't have cared less about the Clinton Foundation for the entire time Clinton was Secretary of State. If there's one thing the current political situation has brought into sharp relief it's the rank hypocrisy of both major political factions in the US.
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Bruce C., 20 Feb 2017 @ 11:22am

A very cogent argument...
I'm with you up to the point where you dismiss Geigner's arguments with " But the mere fact that a foreign government agrees to enforce intellectual property rights does not, on a per se basis, implicate Article I Section 9."

This is true as stated, but ignores the references in the article to the unusual change of heart by the Chinese trademark authorities.

The last loss his business suffered on the matter came in May of 2015, shortly before Trump declared his candidacy for President. The rulings, again, only went in one direction against Trump the businessman, and that was a losing direction.

Suddenly, in April of last year, Trump suddenly went back to the Trademark Review and Adjudication Board, which had ruled against his appeal of the original rejection of his trademark application, and asked it to simply review its previous decision. Strangely, the Review Board suddenly reversed course, invalidating Dong's trademark. Trump's trademark was not codified until November 13th, in the >immediate aftermath of his winning the Presidency.

So why would the Chinese government reverse its earlier decisions? Was it addressing prior corrupt decisions and applying the letter of the law as written? You might think that in this case, Trump would be off the hook. But there is another piece to look at, and that is: Do foreigners filing for trademarks in China normally get fair legal reviews of their application? If Trump was still a private individual who never ran for the office of President, would he have gotten the new, favorable ruling? This is a question that must be answered in order to apply 1-9. Unfortunately, that's an answer we're not likely to ever get, so there will be ongoing debate and conspiracy theories at least until something more obvious comes along.
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David, 20 Feb 2017 @ 11:57am

Re: Re: Is it really a "gift"?
Well, it's not a title, or office. He's paying a fee, not receiving one. And it's certainly not a salary. So the 'gift' (or 'present' as the verbiage of the clause) must be the problem.

The left is setting up a dangerous precedent - that a President can only come of a political background. Any individual from the private sector would be immediately disqualified due to any potential business interests. Not that most of Congress haven't benefited greatly in their portfolios and investments during their tenures, of course. But they are using the opportunity to close the door on "outsiders".

I really don't think the Founding Fathers wanted to have a protected class of professional politicians in constant control of the government.
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Wendy Cockcroft, 21 Feb 2017 @ 2:54am

Re: Re: Re: Re: Political parties
I'd agree with you if we were still in the Bush/Obama era, but we're not. The Party Leaders haven't established the anarchist, fascist, and religious authoritarian ideology that rules now, they're clinging desperately to a runaway horse praying they don't fall off.

That ideology was established by the think tanks, etc., established by the likes of the Koch brothers, on whom the politicians lean for campaign finance. This is what's been pulling them so hard to the right. The solution is to get money out of politics but as long as the partisan "No u" nonsense continues, good luck with that.

For the record, the GOP tends to raise more finance than the Dems; they're better funded. The Dems have been moving to the right because neoliberal-leaning donors are more willing to contribute to them if they do.
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timmaguire42 (profile), 21 Feb 2017 @ 6:19am

The argument that the emoluments clause doesn't apply to the president is quite a bit stronger and quite a bit older than Techdirt's analysis admits to. But it is true that the Supreme Court has never weighed in on the question.

Meanwhile, people who have no problem with a Clinton or a Biden or a Reid going into government "service" in poverty and coming out a few years later fabulously rich are suddenly scandalized that a Republican with a successful private life could go in to politics.

No sane person could think it's an impeachable offense if Trump is part owner of a hotel and someone who is a citizen of a foreign country stays there and pays their bill when they leave, which is what the arguments so far put forth amount to. The dishonesty of the new emoluments fans is laughable.
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Anonymous Coward, 21 Feb 2017 @ 8:53am

Re: Re: Gifts are not allowed, owning property (even IP), is

While I'd say it is a stretch to call the granting of these trademarks a gift, I would definitely say that the extent to which Trump could be influenced by China depends on how eager he is to see his name on "All The Things!" and reserve the right to use and profit from it to his own organisation.

As predicted in 1994: "The country's gone down the drain because of the special interests. We need someone in the White House who's so rich he doesn't have to listen to anybody. … When I'm in the office, it's gonna be like the eighties again. Top ten percent will get richer, the other 90 percent can emigrate to Mexico where they can live a better life."
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That One Guy (profile), 21 Feb 2017 @ 11:18am

Re:
No sane person could think it's an impeachable offense if Trump is part owner of a hotel and someone who is a citizen of a foreign country stays there and pays their bill when they leave, which is what the arguments so far put forth amount to. The dishonesty of the new emoluments fans is laughable.

Yes, that sort of argument would be laughable, which is probably why it's not being made.

Rather(as Wendy summed up) the point raised is that Trump applied for the trademarks before. The request was shot down, every time. Fast-forward to the point where Trump announces his intent to run for president, he asks them to 'reconsider', and now suddenly the request is granted, where before it was refused time and time again.

The concern is that the trademark applications were granted not because of their validity, but because of his position, and that future trademark requests or even the current ones could be used as leverage against him. 'Oh, you did something we didn't like? Looks like we may have skipped a few steps on your trademark applications, we'll have to revisit those, double-check to see how valid they really are.'
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Dark Helmet (profile), 22 Feb 2017 @ 3:57am

Re: Re: Re: Is it really a "gift"?
You guys keep saying that he's paying a fee to have applied for the trademark as though that mattered. It doesn't. He's receiving something of enormous value from a foreign govt. This isn't nearly as hard as you guys are trying to make it...
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Dark Helmet (profile), 22 Feb 2017 @ 4:01am

Re: Re: Re: Is it really a "gift"?
"The left is setting up a dangerous precedent - that a President can only come of a political background."

Uh, not they aren't. They can come from any background they like. They simply can't profit from being in office once they are, which is why the norm is for Presidents to divest of their business or put it in a blind trust so that they know fuck all about what would help them profit or not. And that's a pretty sweet precedent to have set, btw.
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Andrei Mincov - Trademark Factory® (profile), 26 Feb 2017 @ 11:33am

What if he lost?
Left-wing media continue to look for reasons to bash President Trump. This time, Trump should be impeached for winning his trademark disputes in China after he agreed to honor "One China" policy. Let's not forget that the same left-wing media were going nuts when Trump QUESTIONED "One China" policy. The same media would certainly find something to blame Trump for if he had lost his trademark battles in China. Imagine the headlines: "Trump's Chinese Trademark Humiliation", "China Court Not Impressed With Trump's Presidency", etc. I mean, come on! The left's vendetta against President Trump has gotten so personal—it's absolutely ridiculous. When a man is condemned for every little thing he does (or does not do), the substance of such attacks becomes irrelevant: essentially, Trump is guilty by default because he is not Hillary. But if we look back at the substance of Trump's trademark dispute, what is wrong with an American company being successful in protecting one of its most valuable assets overseas?

Andrei Mincov
Founder and CEO of Trademark Factory® ( https://trademarkfactory.com ), the only firm in the world where licensed lawyers and trademark agents will help you register your trademarks with a free comprehensive trademark search, for a single all-inclusive flat fee, with a 100% money-back guarantee.
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