The Domestic Emoluments Clause

. . . and [the President] shall not receive within that Period any other Emolument from the United States, or any of them.

—Josh Blackman & Seth Barrett Tillman

Introduction

The Constitution limits Congress’s ability to change its own compensation, the President’s compensation, and Article III judges’ compensation. The President’s compensation cannot be increased or decreased during his elected term.¹ (See Essay No. 99.) Compensation for federal judges cannot be decreased but can be increased while they remain in office.² (See Essay No. 122.) Under the original Constitution, compensation for members of Congress could be increased or decreased at any time.³ (See Essay No. 30.) The Twenty-Seventh Amendment now provides that any change in congressional compensation can take effect only after a new election. (See Essay No. 216.)

The Constitution also restricts certain federal government officials and officers from receiving other forms of compensation and benefits. For example, the Foreign Emoluments Clause provides that those holding an “Office of Profit or Trust under” the United States cannot receive an “Emolument . . . of any kind” from a foreign government.⁴ (See Essay No. 76.) The Supreme Court has observed that the term “emoluments” refers to “every species of compensation or pecuniary profit derived from a discharge of the duties of the office.”⁵

The Constitution further provides that the President “shall not receive within that Period” to which he was elected “any other Emolument from the United States, or any of them.” This provision, known as the Domestic Emoluments Clause or the Presidential Emoluments Clause, prohibits the President from receiving any emoluments from the state governments and from receiving any emoluments from the federal government apart from his regular presidential compensation. It is the view of the authors of this essay that this provision does not restrict the President from receiving income or other benefits from other entities, including domestic and foreign private commercial entities, and furthermore, it does not squarely bar even any federal or state government office-related benefits unless such benefits take the form of “emoluments.”

The Constitutional Convention

The Domestic Emoluments Clause was added to the Constitution only two days before the document was signed. On September 15, 1787, John Rutledge of South Carolina and Benjamin Franklin of Pennsylvania sought to “annex” the Presidential Compensation Clause.⁶ As previously reported by the Committee of Style on September 12, that provision specified that “[t]he president shall, at stated times, receive a fixed compensation for his services, which shall neither be encreased nor diminished during the period for which he shall have been elected.”⁷ Rutledge and Franklin added that “he (the President) shall not receive, within that Period [to which he was elected], any other emolument from the U. S. or any of them.” (The word “them” refers to any of the states in the Union.)

This proposal was adopted by a vote of 7 to 4. There was no recorded debate. Much earlier in the Convention, on June 2, Franklin had urged the delegates not to give the proposed “Executive” any salary or regular compensation and, instead, to grant him only expenses.⁸ In 1981, the Department of Justice’s Office of Legal Counsel (OLC) explained that “[t]he extant records of the Constitutional Convention are silent regarding the purposes which” the Domestic Emoluments Clause was “intended to serve.”⁹

The Ratification Debates

In Federalist No. 73, Alexander Hamilton discussed the importance of the Presidential Compensation Clause and the Domestic Emoluments Clause. He stressed the importance of “providing for vigor of the executive authority” and “an adequate provision for its support.” Once Congress “declare[s]” the President’s compensation, the legislature will “have no power to alter it.” Moreover, the federal government and the states will not “be at liberty to give, nor will [the President] be at liberty to receive, any other emolument than that which may have been determined by the first act.” Congress “can neither weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice.”

At the Pennsylvania ratification convention, James Wilson likewise explained that the Domestic Emoluments Clause was designed “to secure the President from any dependence upon the legislature as to his salary. . . .”¹⁰

The Foreign and Domestic Emoluments Clauses

The Foreign Emoluments Clause prohibits a person “holding any Office of Profit or Trust under” the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without congressional consent.¹¹ The Domestic Emoluments Clause provides that the President “shall not receive within that Period any other Emolument from the United States, or any of them.”

There are several differences between these provisions. First, the Foreign Emoluments Clause applies to those holding an “Office . . . under the United States.” It is our view that this phrase refers to appointed positions in the executive and judicial branches as well as non-apex appointed positions in the legislative branch, but the President does not hold such an office.¹² The Domestic Emoluments Clause applies solely to the President.

Second, the Foreign Emoluments Clause applies to a wide range of compensation and benefits: presents, emoluments, offices, and titles. The Domestic Emoluments Clause applies exclusively to emoluments. It follows that the Domestic Emoluments Clause does not bar the President from receiving presents or from holding an uncompensated office. The language of the clause only bars drawing a second set of “emoluments.” This suggests that the President may concurrently hold a second federal or state position but is prohibited from receiving the emoluments (if any) attached to the second position.

Third, the Foreign Emoluments Clause applies to “any” present, emolument, office, or title “of any kind whatever.” This language arguably broadens the meaning of those terms.¹³ The Domestic Emoluments Clause applies exclusively to “emolument[s]”—that is, compensation (apart from his regularly authorized presidential compensation) from the United States or from any state in connection with his holding a second, federal or state position.

Fourth, Congress can consent to the President’s acceptance of foreign emoluments, but it cannot consent to the President’s receipt of domestic emoluments beyond his regularly authorized presidential compensation.

Fifth, the Foreign Emoluments Clause applies to the acceptance of foreign emoluments. By contrast, the Domestic Emoluments Clause applies to the receipt of domestic emoluments. This difference in language makes some logistical sense. The President could receive a foreign gift and then seek congressional consent before formally accepting the gift. By contrast, the President could not receive, even temporarily, a prohibited domestic emolument. Such receipt could not be authorized by Congress or any other body.

President Washington and the Domestic Emoluments Clause

During the first Trump Administration, a federal district court contended that an “emolument” was commonly understood by the Founding generation to encompass “any profit, gain, or advantage.”¹⁴ One scholar wrote that Founding-era dictionaries did not define an “emolument” as compensation tied to office or employment.¹⁵ In Essay No. 76, we explain why we think these definitions of “emolument” are far too broad. In our view, emoluments would not include profits from private business transactions that are not connected to the discharge of the duties of a government office.

Practices during the Washington Administration inform this debate. In 1793, President George Washington purchased four lots of land at a public auction in the new federal capital.¹⁶ Washington paid for and received valuable land from the federal government: a financial benefit beyond his regular salary.¹⁷ If an “emolument” includes anything of value, then Washington would have violated the Domestic Emoluments Clause. We have found no contemporaneous record, either from public debate or in private correspondence, suggesting that Washington’s bidding at a public auction was wrongful, much less unconstitutional. It was only at the time litigation began against Trump during his first Administration that some began to suggest that Washington acted lawlessly.

For all of these reasons, we suggest that the better reading of the clause is that “emolument” is limited to authorized, lawful compensation that arises from the discharge of the duties of a government office. Under our view of the scope of the term “emoluments,” Washington was not a lawbreaker.¹⁸

President Kennedy and the Domestic Emoluments Clause

While President John F. Kennedy was in office, he did not receive his naval retirement pay. After Kennedy’s death, his estate sought the amount of pay that had accrued. The Office of Legal Counsel determined that the Domestic Emoluments Clause should be interpreted to prevent the federal government from attempting to influence the President.¹⁹ In this case, however, Kennedy had earned the pension before taking office and did not have to “perform any services or fulfill any other obligations as a condition precedent to receipt of such payments.”²⁰ Ultimately, the General Accounting Office found that the President’s receipt of compensation as commander in chief precluded his ability to receive retirement pay for the same period.²¹ As a result, the late President’s estate did not receive his unpaid naval retirement pay.

President Lyndon Johnson and the Domestic Emoluments Clause

While in Congress, Representative Lyndon B. Johnson had an ownership interest in a radio station and a television station in Austin, Texas.²² While Johnson served as Vice President and later as President, he did not sell his interest in these stations. Instead, he set up what he described and others later characterized, accurately or not, as a “blind trust.”²³ Biographer Robert Caro observed that there was a “twenty-year-long string of strikingly favorable rulings by the Federal Communications Commission” (FCC) in favor of the television station.²⁴ Biographer Robert Dallek wrote that Johnson’s “involvement in a business that largely depended on the actions of a Federal agency for its success created a clear conflict between his private interests and public position.”²⁵

If an “emolument” is defined as anything of value, then maintaining and renewing the radio station’s FCC licenses would likely have been covered by the Domestic Emoluments Clause; that is, President Johnson received a valuable license from the federal government. We are not aware that anyone, including Johnson’s many critics, raised constitutional concerns with respect to the trust arrangement. This is some evidence that Johnson’s business interests and the regulatory benefits he received from the federal government while President did not amount to prohibited “emoluments.” To put it another way, a transaction might pose an ethical or legal conflict and might even appear to be corrupt, but that does not mean it involves an “emolument” as that term is used in the Domestic Emoluments Clause.

President Nixon and the Domestic Emoluments Clause

After President Richard Nixon resigned from office, the General Services Administration (GSA) took custody of certain materials from the Nixon presidency. Nixon sued the government to retain control of these papers, recordings, and other items. Nixon claimed that these materials were his property. But the government argued that “the salary and benefits provided to Mr. Nixon by the United States during his presidency were the only economic benefits the United States could have provided him.”²⁶ As a result, the government claimed, the Domestic Emoluments Clause prohibited Nixon “from receiving any ‘emolument’ from the United States beyond the compensation fixed by Congress before he . . . took office.”²⁷ Moreover, Nixon would be “precluded from taking materials and selling them for personal profit during, or after, his . . . presidency.”²⁸ Thus, he was “not entitled to any [further] compensation by virtue of the Emoluments Clause.”²⁹ Nixon countered “that since the presidential papers were never public property to begin with, the [Domestic] Emoluments Clause does not apply to them.”³⁰

In Griffin v. United States (1995), a federal district court recognized that the Domestic Emoluments Clause “addressed the Framers’ concern that the President should not have the ability to convert his or her office for profit.”³¹ However, the court also found that the clause “does not bar the award of compensation.” This provision applies while a President is in office, but the clause “would not be violated because Mr. Nixon would receive compensation subsequent to the expiration of his term of office.”³² Any “proceeds derived from the sale of Mr. Nixon’s presidential papers do not constitute an emolument.”³³ Past Presidents had negotiated “fancy sums” for “lucrative library deals,” and the Library of Congress has “authorized purchases” of materials from Presidents.³⁴ The court declined to address whether “a sitting President could sell his or her papers while in office” because those facts were not presented.³⁵

Griffin is in some tension with an earlier district court decision, Nixon v. Sampson (1975).³⁶ That case held that Nixon’s materials from the White House were “directly related to the performance of the Office of the President and are of incalculable value.” The judge ruled that it would violate the Domestic Emoluments Clause if the President was “given or . . . permitted to assert a personal right to such materials.” Nixon argued that this material was “not an emolument because his right of ownership does not come into existence until he leaves office.”³⁷ The court rejected this argument: “[I]f [Nixon’s] claim of ownership does not come into existence until he leaves office, then it can only be concluded that while he is in office the documents, papers, tapes and other materials were government property.” Sampson was later vacated, and Griffin did not cite Sampson.

President Reagan and the Domestic Emoluments Clause

Before serving as President, Ronald Reagan earned a pension from the State of California, where he had served as governor. In 1981, the Office of Legal Counsel found that President Reagan’s continued acceptance of his state pension would not violate the Domestic Emoluments Clause. OLC sought to give effect to the purpose of the clause as construed in the 1964 opinion concerning President Kennedy’s naval retirement pay. In this case, Reagan’s pension had vested before he became President, and he “no longer ha[d] to perform any services.” Reagan’s receipt of the pension would not have any “improper influence” or “have any such effect” on the President. OLC also provided a textual analysis.

Based on the dictionary definition of emolument, OLC further concluded that the state retirement benefits were not emoluments, because they are “a gift or part of the retiree’s compensation.”³⁸ Here OLC seems to reject a broad definition of “emolument” that would include anything of value. Nearly four decades later, a federal district court disagreed with this reasoning.³⁹ The Comptroller General declined to rule whether Reagan’s pension was an emolument, finding instead that the Domestic Emoluments Clause “does not extend to payments for services rendered prior to the occupancy of, and having no connection with the Presidency.”⁴⁰

President Trump and the Domestic Emoluments Clause

During President Donald Trump’s first term, he was sued for allegedly violating the Domestic Emoluments Clause. Plaintiffs claimed that Trump received “profits . . . [in that] domestic governments . . . patronize[d] the Trump International Hotel for the express purpose of potentially currying favor with a sitting President. . . .”⁴¹ Specifically, the plaintiffs asserted that Maine’s “spending state funds for its Governor and his entourage to stay at the [Trump International] Hotel and to frequent its facilities during an official visit of those officials to Washington”⁴² violated the Domestic Emoluments Clause. A federal court adopted that position, found that plaintiffs’ position “plausibly state[d] a claim,” and denied Trump’s motion to dismiss. The court found that these business transactions “present[ed] a stark contrast to the fully vested retirement benefits that then-Governor Reagan earned from the State of California which the State of California was not free to withdraw.”⁴³

Also during the first Trump Administration, the GSA leased to the Trump Organization the building that housed the Trump International Hotel. GSA determined that Trump’s interest in the hotel did not violate the lease. The same federal district court determined that these factual allegations “plausibly state[d] a claim under the Domestic Emoluments Clause, and it denied Trump’s motion to dismiss.⁴⁴ Subsequently, the district court’s decisions opining on the scope of “emolument” in the Domestic Emoluments Clause were vacated.

The court acknowledged that investments in mutual funds or stocks “that could be traced to a foreign or domestic government” were emoluments, but the President could hold them. The court determined that such payments or benefits accruing to the fund were de minimis (of little value). Here the court focused on the purpose of the clause rather than its plain meaning: “It is highly doubtful that instances such as these could be reasonably construed as having the potential to unduly influence a public official.”⁴⁵ One scholar replied that “no dictionary has ever defined an emolument as ‘anything of value but with some de minimis exceptions where [the] potential of corruption does not exist.’”⁴⁶

Open Questions

• The Domestic Emoluments Clause prohibits the President from drawing a second set of “emoluments” from the federal government or from a state government. Can Congress appoint the President to a second position that comes with compensation? Can the President appoint himself to such a position,⁴⁷ or would such an appointment violate some general atextual separation of powers or incompatibility principle? Could a state appoint the President to a second position that comes with compensation? Would that appointment violate some general atextual principle of federalism? In other words, does the bar against the President’s receiving a second set of emoluments enjoin him only from accepting that second stream of compensation, or does it act impliedly as a bar against the President’s holding a second position that comes with compensation?
• Are payments made to cover fees, expenses, and other costs incurred by a President prohibited emoluments?
• Is the budget the President receives to renovate the White House a prohibited emolument?
• Are payments made to cover fees, expenses, and other costs incurred by the President’s spouse (or other family) prohibited emoluments?
• Is delayed compensation, such as increased pension benefits, an emolument?
• During the first Trump Administration, it was alleged that the President was personally receiving emoluments from state governments. However, any proceeds from state governments were not being paid directly into his personal accounts. Rather, the states were paying a private commercial entity in which Trump had an interest. Assuming these payments in connection with private commercial transactions were emoluments, would such transactions still violate the Domestic Emoluments Clause? In other words, does a private commercial entity’s independent legal personality make it possible for the President to receive an otherwise prohibited “emolument” indirectly through a potential constitutional workaround? Does it matter how much equity the President owns in the commercial entity—100 percent, a majority, working control even if less than a majority interest, any interest at all? What if the President’s spouse, rather than the President, owned an interest or equity in the private commercial entity and the payments were made to that entity?⁴⁸

1. Art. II, § 1, cl. 7. ↩︎
2. Art. III, § 1. ↩︎
3. Art. I, § 6, cl. 1. ↩︎
4. Art. I, § 9, cl. 8. ↩︎
5. Hoyt v. United States, 51 U.S. (10 How.) 109 (1850). ↩︎
6. 2 Farrand’s 626. ↩︎
7. Id. at 599, 621. ↩︎
8. 1 Farrand’s 82–83. ↩︎
9. President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 188 (1981). ↩︎
10. 2 Elliot’s 446. ↩︎
11. Art. I, § 9, cl. 8. ↩︎
12. Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Incompatibility, and Foreign Emoluments Clauses, 63 S. Tex. L. Rev. 237, 298 (2024). ↩︎
13. D.C. v. Trump, 315 F. Supp. 3d 875, 886 (D. Md. 2018), judgment vacated sub nom. Trump v. D.C., 141 S.Ct. 1262 (2021), and vacated, 838 F. App’x 789 (4th Cir. 2021). ↩︎
14. D.C. v. Trump, 315 F. Supp. at 894–95. ↩︎
15. John Mikhail, The Definition of “Emolument” in English Language and Legal Dictionaries, 1523–1806 (July 12, 2017), https://ssrn.com/abstract=2995693. ↩︎
16. Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y 759 (2017). ↩︎
17. Josh Blackman & Seth Barrett Tillman, Joint Written Statement for Landlord and Tenant: The Trump Administration’s Oversight of the Trump International Hotel Lease: Hearing Before the Subcomm. on Econ. Dev. Pub. Bldgs., & Emergency Mgt. of the H. Comm. on Transportation & Infrastructure (Sept. 25, 2019), https://perma.cc/D83Q-C2AN. ↩︎
18. Josh Blackman & Seth Tillman, Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?, Volokh Conspiracy (Aug. 3, 2018), https://perma.cc/Z598-LQKS; Josh Blackman & Seth Barrett Tillman, The Inspector General, General Services Administration, Refuses to Acknowledge Her Plain Error About the Domestic Emoluments Clause, Volokh Conspiracy (Oct. 7, 2019), https://perma.cc/7CWT-RFU8. ↩︎
19. Letter from Assistant Attorney General Norbert Schlei to General Counsel Robert Keller, General Accounting Office (Oct. 13, 1964), and attached staff memorandum (Oct. 12, 1964). ↩︎
20. OLC, supra at 189. ↩︎
21. Letter from General Counsel Robert Keller, General Accounting Office, to Assistant Attorney General Norbert Schlei (Nov. 1, 1964). ↩︎
22. 4 Robert A. Caro, The Passage of Power: The Years of Lyndon Johnson 286 (2013). ↩︎
23. Megan J. Ballard, The Shortsightedness of Blind Trusts, 56 Kan. L. Rev. 43, 55 (2007); Josh Blackman, President Lyndon B. Johnson’s TV Station and the “Blind Trust,” Volokh Conspiracy (Jan. 1, 2025), https://perma.cc/L4V5-DGCF. ↩︎
24. Robert Dallek, Lyndon B. Johnson: Portrait of a President 52 (2004). ↩︎
25. Id. ↩︎
26. Griffin v. United States, 935 F. Supp. 1, 3 (D.D.C. 1995). ↩︎
27. Id. ↩︎
28. Id. at 4. ↩︎
29. Id. at 3. ↩︎
30. Id. at 4. ↩︎
31. Id. ↩︎
32. Id. at 6. ↩︎
33. Id. ↩︎
34. Id. ↩︎
35. Id. ↩︎
36. Nixon v. Sampson, 389 F. Supp. 107, 137 (D.D.C. 1975), rev’d sub nom. Reps. Comm. for Freedom of Press v. Sampson, 591 F.2d 944 (D.C. Cir. 1978). ↩︎
37. Id. at n.80. ↩︎
38. OLC, supra at 187. ↩︎
39. D.C. v. Trump, 315 F. Supp. at 901. ↩︎
40. Comp. Gen. B-207467, 1983 WL 27823 (1983). ↩︎
41. D.C. v. Trump, 315 F. Supp. at 903. ↩︎
42. Id. at 906. ↩︎
43. Id. ↩︎
44. Id. ↩︎
45. Id. at 899. ↩︎
46. Andy Grewel, District Court Adopts Purpose-Based Approach in Emoluments Lawsuit, Yale J. on Reg. Notice & Comment Blog (July 26, 2018), https://perma.cc/WM3R-EM5K. ↩︎
47. Josh Blackman, Can President Trump Appoint Himself Chairman of the Kennedy Center Board of Trustees?, Volokh Conspiracy (Feb. 9, 2025), https://perma.cc/T25X-5BFG. ↩︎
48. Steven Nelson, Sen. Richard Blumenthal Denies Facing Same Legal Issue He’s Suing Trump Over, Wash. Examiner (Aug. 22, 2017), https://perma.cc/895G-4DVS. ↩︎