Wait, Can He Actually Do That? Part 19: The Qatari Gift Jet Would Violate the Emoluments Clause Even If It Doesn't Go To Trump's Presidential Library

The Foreign Emoluments Clause of Article I provides that "no person holding any office of profit or trust under [the United States] 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." In various articles (including this one), Professor Seth Barrett Tillman has argued that the clause restricts only persons holding appointments to offices created by statute and thus doesn't apply to the presidency. To my mind--and in the consensus view of the academy--that counter-intuitive conclusion is too counter-intuitive to stand. The framers had, and we have, more, not less, reason to worry about foreigners purchasing influence over the president than over every lowly government official. Accordingly, although Professor Tillman's arguments cannot simply be dismissed, I shall proceed here on the widely accepted assumption that the Presidency is an "office" within the meaning of the clause.

If the government of Qatar were proposing to write Donald Trump a check for hundreds of millions of dollars or convey title to an aircraft worth hundreds of millions of dollars, that would obviously be an unconstitutional "present" or "emolument," absent congressional action approving it. The Trump administration has apparently concluded that the actual proposed gift would not implicate the Emoluments Clause because it is being given to the U.S. military, not to Trump personally. Can that be right?

No.

In commenting on the proposed Qatari gift, some observers have noted that the plan to re-gift the plane from the U.S. military to the Trump presidential library reveals that the gift is not really to the U.S. military at all, but to Trump. That strikes me as correct, even if, as Trump has now said, he does not plan to fly on the plane after he is no longer president. (I guess we should be happy that he's talking about a time when he will be alive and no longer be president. But I digress.) If vesting title in the Trump presidential library is tantamount to title in Trump, then it doesn't matter whether or not Trump flies on the plane after his presidency. If Jones gives Smith a Tesla Cybertruck, Jones has made a gift of the Cybertruck, regardless of whether Smith drives it, re-gifts it to her niece, or permanently parks it in her front lawn where passersby can view it as an objet d'art.

The plan to send the plane along to the Trump presidential library undercuts the claim that Qatar is making a gift to the U.S. military rather than to Trump. As my former colleague Professor Richard Briffault told NPR, if Trump is the only president to fly in the plane because it goes to his library after he leaves office, "then it's not really a gift to the United States at all."

That's fair enough, but in my view the gift would violate the Emoluments Clause even if it were to the U.S. military and whoever succeeds Trump as President is able to use it as Air Force One. I can explain how I reach that conclusion with a few hypotheticals.

The president flies on Air Force One, but other government officials to whom the Foreign Emoluments Clause applies are generally required by federal regulation to fly coach on commercial airlines when traveling on official business. Suppose that the government of a foreign country--let's say Turkey--provided a gift to a U.S. government official of free first-class upgrades on foreign travel. That would obviously be a "present" or an "emolument" within the meaning of the Constitution and would thus be unlawful unless authorized by Congress. The point would be even more obvious, if that is even possible, if the foreign government provided for the use of a private jet for such travel. The recipient of a gift need not obtain title to any personal property to receive a gift. A gift of services is a gift.

Are first-class upgrades or the use (but not ownership of) a private jet meaningfully different from what President Trump would get from the Qatari jet? They might be different in two ways.

First, if the U.S. military does not re-gift the plane to the Trump presidential library in 2029, then Trump would be sharing the benefit with future presidents who would fly on the new Air Force One. However, that doesn't appear to cure the Emoluments Clause violation, as a return to our hypothetical scenario illustrates.

Suppose that the Turkish government wishes to give free first-class upgrades to some current federal deputy secretary of something-or-other whom I'll call Shmeric Shmadams. Suppose further that Shmadams is worried that this would be an impermissible foreign emolument for which he cannot obtain congressional approval, so he comes up with a workaround. What if the Turkish government made the gift not just to Shmadams but to every future deputy secretary of something-or-other? That would seem to exacerbate rather than ameliorate the problem. Suppose then, that the Turkish government gave the United States a sum of money to endow first-class travel for the deputy secretary of something-or-other. That too is in substance a gift to the current and future such deputy secretaries and for that reason should be barred by the foreign emoluments clause.

Accordingly, to my mind the fact that future presidents could use the Qatari jet as Air Force One--in the hypothetical scenario in which it is not donated to the Trump presidential library--does not meaningfully distinguish the actual proposed gift from the hypothetical scenario of free first-class upgrades for the deputy secretary.

But there is a second possible distinction. Trump is not being upgraded from coach to first class. He is being given a substitute jet for an existing jet. Even so, this still strikes me as an emolument because everything that makes the "flying palace" that is the Qatari jet superior to the existing Air Force One is about luxury and comfort, not about doing the job of being president. To explain the distinction I'm drawing, a few examples may be helpful.

France's gift to the United States of the Statue of Liberty did not implicate the Foreign Emoluments Clause because it was in both form and substance a gift to the American people as a whole, not to any individual government officials. The point isn't that it's a statue rather than a jet. If, instead of giving the Statue of Liberty to the United States, France had given it to Chester A. Arthur (who was president at the time) for Arthur to enjoy personally (never mind how), that would have been a foreign emolument.

What about functional objects? Certain Swedish-made submarines have advantages over anything in the U.S. naval fleet, especially in shallow water. Suppose that as a thank-you gift for facilitating its recent entry into NATO, the government of Sweden gifts the U.S. military such a submarine. That is pretty plainly not covered by the Foreign Emoluments Clause, because it chiefly--indeed almost exclusively--contributes to a public function, national defense, rather than enriching or benefiting any individual.

Having the Swedish submarine in the U.S. fleet makes it marginally easier for the president to do his job because he has one more effective craft at his disposal. Well, it might be argued, flying in the Qatari jet is more relaxing for the president and thus also makes it easier for him to do his job. What's the difference?

If the Qatari jet were merely a new Air Force One to replace a plane that needed to be retired, then I think its donation to the U.S. military would be indistinguishable from the hypothetical gifted Swedish submarine--even if the new jet had some additional creature comforts that Trump (and future presidents, on the assumption the plane doesn't go to the Trump library in 2029) could enjoy. However, the Qatari jet is, as a functional matter, a downgrade. It would apparently cost about a billion dollars to convert what is now an extremely luxurious civilian aircraft into a functioning and secure platform for transporting the president. The news item just linked suggests that the conversion would take years, potentially making the entire project unworkable, but let's set that aside. Suppose that the U.S. military could, albeit at great expense, turn the Qatari jet into a functioning very luxurious Air Force One in time for Trump to use it. The primary and nearly exclusive purpose would be to increase the luxury and comfort of the president. That seems much more like the upgrade from coach to first class than the gift of the Swedish submarine.

Hold on. Am I saying that anything that a foreign government does that the president or any other U.S. government officer enjoys is a present or emolument for which congressional approval is needed? No. State dinners, luxurious accommodations, and other amenities that are afforded to visiting foreign dignitaries are essentially incidental to the conduct of official business. But at some point one crosses a line. A president (or other U.S. government official) can enjoy a gourmet meal while on a state visit to the U.K. If King Charles pays Gordon Ramsay to serve as the personal chef to the president, that would be an emolument "from any king."

So too with the Qatari jet. Trump's lust for its luxury is not just gross. Absent congressional approval, it's unconstitutional.

Postscript: Throughout the foregoing, I have referred to the "Foreign Emoluments Clause" of Article I. That's because the Constitution contains a second, domestic Emoluments Clause found in Article II. Unlike its Article I counterpart, the Article II version applies only to the president and cannot be overcome with congressional approval. It provides: "The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them."

Read together, the two emoluments clauses could mean that while Congress can approve foreign gifts to officers other than the president, it cannot approve gifts to the president. After all, Congress itself cannot give the president a gift (in virtue of the Article II clause), so congressional approval of a foreign gift could be understood as circumventing that prohibition. If so, and if my primary analysis above is correct, then Trump cannot accept the Qatari jet even with congressional approval.

However, I hesitate to draw that conclusion, because there are numerous instances of presidents receiving foreign gifts and then asking for congressional approval or guidance. Interestingly, though, in my research into the question--including instances involving Presidents Washington, Jackson, Lincoln, and Grant--I found no episodes in which the president sought and received from Congress approval for personal retention of the gift. Nonetheless, I believe that was likely because prior presidents were much less tacky than the current president, not because of a view that congressional approval could not validate a foreign present to the president personally. Hence, historical practice cuts against the suggestion that the Article II Emoluments Clause overrides the power of congressional approval of foreign gifts to the president under the Article I Emoluments Clause.

-- Michael C. Dorf

Find all the essays in the Wait, Can He Actually Do That? series here.