Notice & Comment

Flynn’s Foreign Emoluments Clause Problem and the Potentially Explosive Solution

As widely reported by numerous outlets, Rep. Cummings recently sent a letter to President Trump alleging, among other things, that retired Lt. General Michael Flynn violated the Foreign Emoluments Clause of the Constitution by accepting payments from Russian sources. The letter argues that Flynn now owes a debt to the United States on account of the allegedly unconstitutional payments, and Cummings thus requests that the Trump Administration recover the amounts paid to Flynn. See pp. 6-9 of the Cummings letter. This particular course of action could have drastic consequences if President Trump accepts a broad reading of the Foreign Emoluments Clause and extends its enforcement beyond Flynn.

This post first considers whether Flynn violated the Foreign Emoluments Clause and then examines the potentially explosive consequences of Cummings’ proposed remedy.

A. Constitutional Violation? Whether Flynn violated the Foreign Emoluments Clause raises some factual and legal questions. For a violation under the Foreign Emoluments Clause to have occurred, Flynn 1) must qualify as a U.S. Officer (i.e., a holder of an office of profit or trust under the United States); 2) must have accepted an “emolument”; and 3) must have accepted that emolument from a foreign government.

1. U.S. Officer. At the time of the relevant payments, Flynn was no longer an active officer in the Army and the Foreign Emoluments Clause thus might not have applied to him. However, legislative enactments and other authorities state or imply that, where military personnel are retired but can be involuntarily recalled to active duty, they remain U.S. Officers for purposes of the Foreign Emoluments Clause. See 37 U.S.C. § 908(a)(1); Applicability of 18 U.S.C. § 219 to Retired Foreign Service Officers, 11 Op. O.L.C. 67, 68-69 (1987). Though these authorities do not definitively settle whether Flynn remains a U.S. Officer even while retired, Flynn cannot casually argue that he escapes the Foreign Emoluments Clause on account of his retired status.

2. Emolument. Nearly every available legal authority shows that an “emolument” under the Foreign Emoluments Clause refers only to compensation paid for the performance of services. See Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. — (2017). It appears that a substantial portion of the money Flynn received from Russian sources was, in fact, paid in exchange for his performance of services (speaking engagements). Thus, Flynn cannot escape Cummings’ allegations by stating that he received no emolument.

3. From a foreign government. Whether Flynn received an emolument from a foreign government presents the most difficult question, because Flynn seems to have received no payments directly from the Russian government. Rather, Russia Today (RT), a state-owned television station, paid a fee only to Leading Authorities, a private firm which arranges for prominent speakers, including Flynn, to appear at various events. Leading Authorities collected a fee from RT and then paid Flynn 75% of the amount collected.

This indirect relationship between Flynn and the Russian government presents two thorny questions. First, should the interposition of Leading Authorities between Flynn and RT be disregarded, such that Flynn’s fee should be considered to have come “from” RT?  Second, even if the relevant transactions are characterized as occurring directly between RT and Flynn, should RT be treated as part of the Russian government?

Neither of these questions can be properly resolved without careful, extensive analysis. For guidance on whether the interposition of an entity inoculates a transaction from the Foreign Emoluments Clause, see my prior post, Some Thoughts on Business Entities and the Foreign Emoluments Clause. For guidance on whether a corporate entity (like RT) may be treated as part of a foreign government, see Office of Legal Counsel Opinion (Dec. 7, 2009), pp.7-11, which states that the relevant issue is whether “the entity in question is sufficiently independent of the foreign government to which it is arguably tied.”  Note that the Cummings letter presents some facts showing that RT is not independent of the Russian government.

B. The Explosive Remedy. If Flynn violated the Foreign Emoluments Clause, the appropriate remedy is unclear. As the Comptroller General has acknowledged, the Foreign Emoluments Clause “does not specify the penalty to be imposed for action taken contrary to [its] prohibition.” 53 Comp. Gen. 753, 758 (1974). But the Comptroller General believes that “substantial effect” can be given to the Clause by denying pension payments to a U.S. Officer equal to the amount that he or she unconstitutionally received from a foreign government. See id.

Rep. Cummings essentially argues that President Trump should adopt that approach. He asks that the Department of Army confirm the amount of Flynn’s debt and that the Defense Finance & Accounting Agency initiate collection procedures against Flynn. Though Flynn may have been unaware of any Constitutional violations, Cummings, relying on Department of Defense guidelines, states that “ignorance. . . is no defense.”  Consequently, under Cummings’ approach, Flynn would probably have to pay to the United States the amounts he received from RT or face withholding of any military retirement pay. (I will leave issues related to any defense under 37 U.S.C. § 908 to a separate post.)

When Cummings’ approach is viewed in tandem with highly aggressive interpretations of the Foreign Emoluments Clause, a potentially extraordinary set of circumstances may arise: President Trump could stop making salary or pension payments to a whole swath of current or past federal officials. That is, under the exceptionally broad interpretation of “emolument” proffered in the lawsuit by Citizens for Responsibility and Ethics in Washington (CREW) versus President Trump, and the one often echoed by other commentators, prohibited emoluments includes payments or benefits from a foreign government of any kind, whether provided to the President, executive branch official, or even to a member of Congress.

Thus, for example, President Trump’s recent receipt of trademarks from China would be unconstitutional, as would be the 20+ copyrights that Barack Obama received from foreign governments during his time in the Senate and White House. Many current members of Congress would also have received unconstitutional emoluments under this broad definition, whether on account of book copyrights, amounts received from their business’s foreign-government customers, interest income on foreign government bonds, building permits for foreign vacation homes, and so on. Consequently, if one accepts the (incorrect) definition of emolument proffered in the CREW litigation and if one accepts the (debatable) remedy previously advocated by the Comptroller General, then President Trump could legally deny pension payments to President Obama and his former Administration officials, and could even refuse some salary payments to current members of Congress who have received any type of benefit from a foreign government.

In ordinary circumstances, these types of actions would be highly unlikely. However, we are living in strange times and with a new kind of President. If a court in the CREW or other lawsuit burdens President Trump with an unduly broad interpretation of the Foreign Emoluments Clause, then it would be perfectly appropriate and probably even fair for him to apply that interpretation to the benefits received by President Obama and other federal officials, and to sanction them for their violations.

But my point here is not to encourage President Trump to undertake those actions. Rather, the Flynn controversy, and the Cummings letter, allow us another opportunity to consider how the Foreign Emoluments Clause should be interpreted and what remedies are appropriate for any violation. Reflexively stating that Flynn has violated the Foreign Emoluments Clause, without analysis of the issues described in Part A, and unequivocally demanding recovery of his speaking fee, will lead to potentially strange results. Cf. also Should Congress Impeach Obama for His Emoluments Clause Violations?, Yale. Reg. Notice & Comment (Dec. 16, 2016).

Flynn may very well have violated the Constitution in accepting the payment from Leading Authorities. But in examining that difficult issue, our analysis should be cerebral, not visceral. With that in mind, I hope that the Trump Administration asks the DOJ Office of Legal Counsel to issue a publicly-available opinion on the uncertain and important legal questions raised by Flynn’s activities.

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