Why It Matters That a President Declines His Salary
That choice is more problematic than it may seem and implicates broader conflict of interest concerns.
President-elect Trump has announced his intention to decline his government salary, as he did in his first Administration. He has described it as a modest sacrifice for a man of his wealth, “no big deal,” and “a nice thing to do.” George Washington, he rightly noted, did the same (though Trump is less sure than some historians, because “those records aren’t too good.”). But if not a big deal, a president’s refusal of his government salary is not insignificant. And, in the case of Donald Trump’s second term, it ties into still larger, looming conflict of interest issues.
The history of presidents declining their salary is more complicated than Trump’s suggestion that it is one of two singular instances where presidents have acted in a way deserving of “credit.” George Washington offered to serve without pay, with only expenses covered, but the Continental Congress turned down the proposal and insisted on compensation. For Washington, his preference to decline pay was a display of “customary noblesse oblige.” He wished to underscore his financial independence, which was “his way of emphasizing that he was less a professional politician than a gentleman graciously donating his time.” Congress took the different view that Washington had accepted a responsibility for which compensation was due, and he was obligated to accept it.
But why? Implicated in the choice to accept or reject the pay is the proper conception of what the job of being president entails. As Jack and I have written elsewhere, the presidency is a full-time commitment and “by refusing…pay, a president unilaterally redefines the terms of his or her tenure” and may conduct the presidency as “just an activity among others, such as private business interests, that presents the potential for conflict of interest.” Moreover, should conflicts arise, the problem is exacerbated by the decision to accept all revenue other than the compensation provided by the public for the performance of official duties.
It matters that the Constitution has a lot to say about paying a president. The Domestic Emoluments Clause provides that he or she “shall receive for his services, a compensation” which may not be increased or decreased while in office. It disallows every other any other pay “from the United States, or any of them.” The Foreign Emolument Clause prohibits receipt (absent congressional consent) of any “emolument” from a foreign government, which reaches on the narrowest of readings (the one favored by the first Trump Administration) direct pay for services. This attention to compensation for the president in the constitutional text reflects the importance the Framers evidently attached to this aspect of presidential officeholding. It expresses an expectation that the president has taken a position involving pay for services rendered--that it is a position of that nature. And each Clause looks to guard against the potential for conflicts that other sources of revenue may generate.
Of particular significance to these constitutionally based conflict-of-interest concerns is the exemption that presidents (and vice presidents) generally enjoy an exemption from the conflict-of-interest statutes and regulations binding all other federal government officials and employees. Normally, an official or employee who is “conflicted out” of working on a particular matter may be replaced by another who does the work. Presidents cannot “recuse” in this way: the Constitution requires them to perform all duties assigned to them by the supreme law of the land. Accountability for their honest performance of these duties is left to norms, not enforceable rules of conduct, and to public judgment. As the Department of Justice Office of Legal Counsel noted in 1974, in affirming that executive branch conflict of interest rules did not apply to presidents, it is “undesirable as a matter of policy” for presidents to disregard conflict issues and decline safeguards such as shedding problematic assets or establishing blind trusts. The author of the opinion, the future Justice Antonin Scalia wrote: “Failure [of presidents] to observe the standards will furnish a simple basis for damaging criticism, whether or not they technically apply.”
The Constitution does not and cannot compel the president to spend the money, but by operation of the tax law, the president has constructively “received” the pay specified for his compensation. In that sense, the constitutional command is always satisfied, regardless of whether the president has stated a refusal to accept the pay. Presidents before Trump—not just George Washington, but also Herbert Hoover and John F. Kennedy--have worked around this “receipt” by simply giving away the compensation and declaring it to have been declined. Kennedy and Hoover donated their salaries to charity; Trump followed the same path and has given his government pay to federal agencies and programs of his choosing.
The risk of conflicts of interest from outside business interests or activities do not rise or fall with the decision to accept or reject pay. But if a president declines a salary while maintaining those interests, the steps he or she takes to address those potential conflicts assume still greater importance. Among the worst of all worlds is one we might soon be facing: A president who both declines the public salary and chooses to operate under relaxed standards for the acceptance of personal profit or gain from private business interests. The worry here is that, at least in appearance, and perhaps also in fact, the president may wind up receiving revenue connected to or influenced by his high office, but not compensation from the electorate who “hired him” for the job.
The incoming Trump administration is reportedly preparing an ethics policy that governs the President-elect’s outside business interests managed by his sons. One focus is the limits on revenue attributable to foreign business investments or ventures. Under consideration is a liberalization of the standard the first Trump Administration announced, which ruled out all overseas business deals. It may be that the new policy will restrict only direct dealings with foreign governments, not engagement in business activities with foreign business partners.
How this distinction will be drawn in practical terms remains be seen. One challenge is the common case of foreign governments holding interests in otherwise private enterprises, subsidizing or supporting them in other ways. A prohibition on direct dealings with foreign governments leaves ample room for indirect foreign government involvement with the president’s personal financial interests. The new administration is certain to reject any suggestion that the Foreign Emoluments Clause stands in the way of any policy that allows for this source of revenue. The first term Trump Administration took the position that the Clause only barred foreign government revenue a president directly earned for services rendered. The second-term Trump Department of Justice will surely defend the president’s acceptance of revenues while in office that are two steps removed, namely, (i) where the income from overseas business interests will be paid to the family business, not directly to the president, and (ii) where the payments will not be for services rendered by the president.
Depending on the design of the ethics policy, the president may be gaining personally from foreign business activity, including activity involving foreign governments, while accepting no pay from the United States. It is difficult to reconcile this result with the core concerns of the constitutional provisions relating to presidential pay. The actions of presidents declining their salaries could well be and often are dismissed as harmless—or to them, only politically beneficial—gestures or grandstanding. But they are meaningful choices. It has become increasingly clear where they may lead.
As an abuse of office one might worry about, a president’s acceptance or refusal of a salary for the job may seem a very small thing. But it is not “nothing.” Consider another small thing— where a president who “shall” take the oath of office in the precise manner commanded by the Constitution fails to do so. When Chief Justice John Roberts mis-administered the oath to President-elect Obama in January 2009, the oath-taking was repeated the following day at the White House. By then Obama had already assumed the office. He was the new President. But it was agreed that the constitutional command—that that he “shall” take the oath word-for-word as it appears in the constitutional text – – be honored.
Likewise, if the president who “shall” receive compensation for services rendered to the American people rejects it, it can’t be dismissed as inconsequential.