On Friday, President Trump will celebrate Bastille Day in Paris to reaffirm “America’s strong ties of friendship with France.” More than two centuries ago, the storming of the Bastille was commemorated when the Marquis de Lafayette, then a French government official, gave President GeorgeWashington the main key to the demolished fortress — a gift Washington kept without asking for Congress’s permission. Indeed, other early presidents followed this tradition of accepting gifts from other nations without ever seeking congressional consent.
This practice is one that Mr. Trump’s legal adversaries ignore as they attempt to redefine the meaning of the Constitution’s Foreign Emoluments Clause. Federal courts should not allow them to create a new legal restriction on the president’s conduct.
The Foreign Emoluments Clause requires those who hold an office of profit or trust under the United States to seek congressional approval before accepting gifts from foreign states. As understood at the time of the framing, only appointed officers hold such positions. In contrast, elected officials do not hold office under the United States, and thus the president is not bound by the clause. If new constraints are to be imposed on the president, they should come from the electorate and Congress, not from the judiciary.
