Shortly after President Trump’s inauguration in 2017, he was sued for violating the Constitution’s Foreign Emoluments Clause. That litigation stretched the entirety of Trump’s first term in office, but did not reach a clear resolution. After Trump’s term concluded, all of those cases fizzled out. Now, we are more than 100 days into Trump’s second term. And, to my surprise, there has been zero litigation about the Foreign Emoluments Clause. Likewise, there has been no litigation following Trump v. Anderson about whether Section 3 disqualifies Trump from office. I suppose these were not the constitutional crises that we were told.
Yet, the Foreign Emoluments has still returned to the fore. ABC News reports that the royal family of Qatar will gift a 747-8 jumbo jet to the Air Force for its use as Air Force One. And at the end of Trump’s term, the plane will be transferred to the Trump Presidential library foundation. ABC reports that White House Counsel, David Warrington, asked the Department of Justice for an opinion on the gift. The opinion has not (yet) been made public, but ABC offers this account:
Anticipating those questions, sources told ABC News that lawyers for the White House counsel’s office and the Department of Justice drafted an analysis for Defense Secretary Pete Hegseth concluding that is legal for the Department of Defense to accept the aircraft as a gift and later turn it over to the Trump library, and that it does not violate laws against bribery or the Constitution’s prohibition (the emoluments clause) of any U.S. government official accepting gifts “from any King, Prince or foreign State.”
Sources told ABC News that Attorney General Pam Bondi and Trump’s top White House lawyer David Warrington concluded it would be “legally permissible” for the donation of the aircraft to be conditioned on transferring its ownership to Trump’s presidential library before the end of his term, according to sources familiar with their determination.
The sources said Bondi provided a legal memorandum addressed to the White House counsel’s office last week after Warrington asked her for advice on the legality of the Pentagon accepting such a donation. . . .
Both the White House and DOJ concluded that because the gift is not conditioned on any official act, it does not constitute bribery, the sources said. Bondi’s legal analysis also says it does not run afoul of the Constitution’s prohibition on foreign gifts because the plane is not being given to an individual, but rather to the United States Air Force and, eventually, to the presidential library foundation, the sources said.
It would be useful to see this opinion at some point. It is not presently posted on the OLC web site.
Still, I can imagine what one of the leading authorities might be.
In 1963, there was discussion whether Ireland could confer honorary Irish Citizenship on President Kennedy. The Office of Legal Counsel provided an opinion on this potential gift. Seth Barrett Tillman and I discussed the gift in Part V of our ten-part series. Here is an excerpt:
McGeorge Bundy, National Security Adviser to the President, asked Attorney General Robert F. Kennedy for advice on whether the President could accept this title of honor. In turn, Norbert A. Schlei, the Assistant Attorney General for the Office of Legal Counsel, prepared a memorandum opinion. He concluded that “acceptance by the President of honorary Irish citizenship would fall within the spirit, if not the letter, of” the Constitution’s Foreign Emoluments Clause. At least in the short term, the certificate should be deposited with the Department of State, such as “in the hands of the United States Ambassador to Ireland.” Schlei observed that “a custom has developed under which officers of the United States may accept foreign honors tendered to them and subsequently have them deposited in the Department of State.” This custom arose because “it avoids offense to other countries.” President Quincy Adams and Lincoln apparently followed this custom. OLC suggested this procedure would affect “substantial compliance” with the Foreign Emoluments Clause. Congress could enact legislation to permit Kennedy to accept the honorary citizenship.
Schlei proposed an alternative path that would not involve Congress: “the President could probably have the document conferring honorary Irish citizenship delivered to him by the Department of State after he leaves the White House.” OLC observed that:
it is the practice of the Protocol Office of the State Department . . . to deliver to a former officer who has severed any official relationship with the United States, upon his request and without referral to Congress, a gift or other mark of honor tendered to him during his incumbency and deposited under the Act.
Thus, even if Congress does not act, “the President could probably obtain the warrant when he no longer holds office.”
OLC did not exactly commit to this approach. The opinion hedges with the phrase “could probably.” We are skeptical of this proposal. Perhaps this approach does not raise flags for an item of no intrinsic value, like a warrant of honorary citizenship. However, one could imagine that a President could easily deposit all valuable gifts he receives in a “special” archive, which he can access as or after he leaves the presidency. There are problems with this approach. First, the President need not even notify Congress he received a valuable gift. The presents can be quietly given to a diplomat, or to the President himself. Second, the President can quietly deposit the valuable gift in government archives, which are under the supervision of his Secretary of State. Government warehouses can be vast and hard to catalogue—think of the final resting spot of the Ark of the Covenant in the Indiana Jones movie. Third, after the President’s term concludes—or even shortly beforehand—he can direct one of his subordinates in the State Department to deliver the valuable gift to his private residence or to a third party. And few would know what had occurred. The OLC’s workaround can easily bypass the Foreign Emoluments Clauses strictures, assuming the provision applies to the President.
Perhaps President Andrew Jackson was right—the only way to comply with the Foreign Emoluments Clause is to let Congress decide how to proceed. Any unilateral action would not suffice.
Ultimately, Ireland never gave Kennedy honorary citizenship.
I see some parallels between the Qatari Jet and the Irish citizenship. In 1963, OLC said that the certificate of citizenship could be maintained by the State Department during the President’s term. And in 2025, OLC said the plane could be maintained by the Air Force during the President’s term. In 1963, OLC suggested that the State Department could deliver the certificate to Kennedy after his term concluded. And in 2025, OLC (apparently) suggested that the Air Force could transfer the plane to the Trump presidential foundation at the end of Trump’s term. It is not clear if Trump would ever take personal ownership of the plane.
As the excerpt above suggests, Tillman and I were skeptical about this work-around. Of course, there is still the threshold issue of whether the President is subject to the Foreign Emoluments Clause. It is worth noting that David Warrington was one of President Trump’s lawyers during the Section 3 litigation. Warrington’s team argued both that the President was not an “Officer of the United States” and did not hold an “Office under the United States.” (I recount this litigation a recent article for the Mississippi Law Journal.) At least before the Colorado Supreme Court, Trump’s counsel seemed to argue that the Presidency was not an “Office . . . under the United States” for purposes of the Foreign Emoluments Clause. Scott Gessler explained:
How could you possibly believe a president would not be part of the [Foreign] Emoluments Clause? Well, I would suggest you walk into Mount Vernon, and you will see above the fireplace a full-length portrait of King Louis . . . the XVI. That was given to George Washington, by the French government. And no one batted an eye, it was never viewed as a violation of the Emoluments Clause, because no one thought that it applied to George Washington, there’s also the key to the Bastille that was given [to] him by a representative of the French government.
The Washington gifts are strong evidence that Washington did not view himself as bound by the Foreign Emoluments Clause. We discuss these gifts at some length in Part V. However, Trump’s counsel before the Supreme Court in Trump v. Anderson did not advance this argument.
It is not clear if the 2025 OLC Opinion addressed the threshold question of whether the President was subject to the Foreign Emoluments Clause. Anything OLC says about this issue could affect the applicability of Section 3 to President Trump.
