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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(untitled comment)
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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