WASHINGTON, DC - JANUARY 19:  A view outside Trump International Hotel Washington, D.C. one day before the inaguration of Donald Trump January 19, 2017 in Washington, DC. Hundreds of thousands of people are expected to come to the National Mall to witness Trump being sworn in as the 45th president of the United States  (Photo by Noam Galai/WireImage)
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Editor’s Note: This story originally ran May 3, 2019. It has been updated to note that an appeals court dismissed a challenge from Maryland and the District of Columbia, which claimed President Donald Trump had violated the Emoluments Clause through his continued ownership of the Trump International Hotel in Washington.

(CNN) —  

When Benjamin Franklin, the first US ambassador to France, was given a diamond-encrusted snuff box by the King, he followed the rules against “emoluments” to officials by foreign states and asked Congress if he could keep it. They said sure, and he did.

When President Barack Obama won the Nobel Peace Prize and got $1.4 million, he gave the money to charity.

Those were official gifts given to officials.

Less clear is whether the Trump Organization should have to ask Congress every time a foreign government wants to spend money at President Donald Trump’s hotels. But it’s an important question, and it’s being litigated for the first time in US history during the Trump administration, since foreign governments seem to be spending a lot of money at Trump’s hotels.

An appeals court in Virginia has rejected an emoluments lawsuit filed by Maryland and the District of Columbia, whose attorneys general said they would continue to pursue their legal claims against Trump over his ownership of the Trump International Hotel near the White House.

It’s just about impossible to separate Donald Trump the man from Trump the business, which was always the point. Trump is the brand.

That was going to create some conflicts of interest when he became the President. The man whose sole job had been enriching himself and his business now had the power of the US government behind him and the responsibility of representing the American people abroad.

It’s a unique situation in US history, where the President is actively benefiting from his name while in office.

And it turns out the Constitution guards against exactly this sort of thing.

An emolument is a payment or favor

“Emoluments” are mentioned three times in the nation’s founding document, an archaic term that, according to Merriam-Webster, is “the returns arising from office or employment usually in the form of compensation or perquisites.”

The most important mention of emoluments in the Constitution is extremely clear in Article 1, Section 9:

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.”

That makes total sense; as President, Trump is supposed to be representing the people, not himself, when he meets with foreign leaders. And it should be very easy for Trump the man to not take any emoluments from foreign states.

The man and the business share the same name, however, and it’s plastered on many buildings across the world, including one that houses a federally owned building Trump leases for his hotel a few blocks from the White House, where Trump carries out the nation’s business.

Payments to Trump’s business by foreigners

Since the early days of Trump’s administration, foreign states have been paying handsome sums to stay at his Trump International Hotel in Washington.

Three separate lawsuits have challenged whether Trump has violated the emoluments clause, both for payments received from governments or trademarks granted by them. One was brought by an ethics group, one by Democrats in Congress and one by the governments of the District of Columbia and Maryland. The lawsuits are all in the court system and there’s little doubt one or all will end up before the Supreme Court.

One possible example of payments by a foreign government is the $270,000 paid by a lobbying firm tied to Saudi Arabia for 500 nights of rooms at Trump’s DC hotel around his inauguration. The firm put up groups of visiting US veterans in the rooms.

That Saudi Arabia has business before Trump the President is without question. The kingdom buys copious arms and military equipment from the US. But it also has dealings with Trump the business. A visit early in 2018 by the Crown Prince of Saudi Arabia to Manhattan helped stop two years of declining revenue at the Trump International Hotel in New York, according to a letter obtained by The Washington Post.

This was before the prince, Mohammed bin Salman, was implicated in the 2018 killing of journalist and dissident Jamal Kashoggi, a point the Saudi government continues to deny. Bin Salman did not stay at Trump’s hotel, but it did host members of the Saudi entourage.

The Embassy of the Philippines – Trump has a friendly relationship with that country’s strongman leader – held an event at Trump hotels and admitted they were hoping it would send a statement of closeness with the President, according to an interview with a Philippines TV station quoted by the Post.

Some of the arrangements have undergone some government review, but not, apparently, been OK’d by Congress.

DOJ says these aren’t emoluments

These are business exchanges, according to the Justice Department, arguing on Trump’s official behalf, and so are not emoluments.

At his confirmation hearing to become attorney general, William Barr said he hadn’t yet researched the issue, but he offered a pretty good representation of the government’s argument on behalf of Trump. Basically, they say the Constitution’s prohibition on presents or emoluments from foreign states shouldn’t be applied to the commercial exchange of a good or a service, even if the person benefiting is the President.

It’s an argument that upends more than 150 years of very strict interpretation of emoluments, according to Washington University law professor Kathleen Clark, who has studied the issue in depth and published a recent paper that said the Department of Justice is acting more like Trump’s personal lawyers than the country’s.

“The Justice Department has veered away from its long track record of vigilance on behalf of the republic,” she says in her report. “Instead, the Department adopted the legal arguments put forward by Donald Trump’s personal lawyers, pushing for a narrow interpretation of the clause in order to advance Trump’s private financial interests.”

Trump’s lawyers have said he cannot be sued in his official capacity.

Who runs the Trump Organization?

Trump gave up day-to-day operations of his business to his two older sons when he took up the day-to-day business of the people, but he didn’t give up his ownership stake in the Trump Organization.

If the lawsuits progress, the Trump Organization could be forced to disclose information about its interactions with foreign governments. Trump has guarded his financial privacy by not releasing his tax returns and the company has too.

Emoluments and the Constitution

It was concerns about influence generally that led to the inclusion of the emoluments clause in the Constitution in the first place, according to notes taken by James Madison in which he said that Charles Pinckney “urged the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence and moved to insert” the clause.

In an odd note of history, it was Pinckney’s later umbrage at a French demand for bribes while he served as a US diplomat that led to what history knows as “the XYZ affair” and an undeclared “quasi-war” between the US and France.

Another framer, Edmund Jennings Randolph, said at the Constitutional Convention that the acceptance of emoluments could be an impeachable offense or at least reason to vote against reelecting a President, according to a 2016 Brookings report on the subject.

“If discovered he may be impeached,” said Randolph. “If he be not impeachable he may be displaced at the end of the four years … I consider, therefore, that he is restrained from receiving any present or emoluments whatever.”

There was also consideration of an amendment that would strip US citizenship from officeholders who had accepted emoluments from foreign powers.