Well, today’s the day! We’re expecting the lawsuit promised by almost 200 Democratic members of Congress to be filed against President Trump for violations of the “Foreign Emoluments Clause” of the Constitution. This is on top of another Emoluments Clause lawsuit brought by Maryland and D.C. earlier this week. The general theory is that under the Constitution, the President has an obligation to insulate himself from any foreign influence that would come in the shape of gifts or profits, and that the kinds of profits President Donald Trump receives through his international corporation are precisely the kind that violate such an obligation. In other words, presidents can’t take bribes, and doing business with foreign governments and large foreign companies is something of a bribe per se. Another similar case, CREW v. Donald J. Trump, was filed three days after the inauguration and is currently awaiting a response to Trump’s motion to dismiss in the Southern District of New York (that case is proceeding before Judge Ronnie Abrams, sister of LawNewz founder Dan Abrams).
Trump immediately already brushed off CREW v. Trump as “totally without merit,” and he’s sure to do the same with the one filed today. Both lawsuits likely have long roads ahead, but “totally without merit” is pretty far from accurate.
A quick refresher on the Emoluments Clause. Under Article I, Section 9, it says:
“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.”
While everyone has opinions on what does and does not constitute an emolument these days, that’s a relatively new phenomenon. Very few lawyers or judges are Emoluments Clause experts, because pre-Trump, there hasn’t been any litigation on this subject. Ever. The lack of prior litigation doesn’t point so much to an long-gone era of less litigious government, but rather, to the uniqueness of the Trump presidency. Presidents have pretty much always divested themselves of business entanglements prior to taking the oath of office.
Today’s lawsuit will likely repeat many of the allegations contained in the CREW lawsuit, namely, that Trump’s business dealings create a major conflict of interest. From hotel rooms booked by heads of state to The Apprentice spinoffs on foreign networks, there are lots of ways President Trump stands to profit from business dealings from foreign governments.
As before, today’s lawsuit will face some tough preliminary questions, such as standing, justiciability, and applicability.
The plaintiff Congressmen must first prove that they have standing to sue. Standing can be pesky. It’s the requirement that if you’re going to sue someone for wrongdoing, you have been actually harmed by that person’s wrongdoing. The requirement for standing is what stops individuals from suing when they simply don’t like laws that have been passed. Trump’s people will undoubtedly argue that no one, least of all members of Congress, have been actually harmed by any business dealings between Trump International and any foreign entities. No one (other than perhaps a competing hotel or business owner) can claim financial losses, so there simply is no basis for these plaintiffs to bring a lawsuit.
Justiciable issue v. Political Question
The second hurdle will be the need to prove that the question raised by this lawsuit is one properly answered by the courts, or whether it is simply a “political question.” The difference between a “justiciable issue” and a “political question” is complex, and often requires significant analysis. At the core of the analysis, though, is the issue of whether the court deciding the underlying lawsuit would have law and precedent from which to draw. The less clear the available legal rules, the more likely the dispute is a policy question best handled outside the judiciary. Will it matter that the plaintiffs here are members of the legislative branch of government as opposed to random individuals? Probably. What will that mean? Tough to say. But judges do tend to take notice when members of one branch of government sue members of another branch. If the court gets passed the standing issue, you can bet we’ll be seeing significant debate on this secondary preliminary issue.
Applicability and Exemption
The final pre-merits argument sure to arise in this case is whether the Emoluments Clause applies to the president at all. Some legal scholars have argued that the President is not an “Officer” of the United States, and is therefore not bound by the clause in any regard. I suppose it’s possible that the Trump people could convince a judge that other government officials must avoid conflicts while the President is free to take what he wants from whomever is offering. More likely, though, I think any judge would rule that if there were ever a situation to which the Emoluments rule applies, this is it.
The closest analogous matter is the case of President Barack Obama, who sought permission from the Office of Legal Ethics (“OLE”) to accept the $1.4 million award as part of the Nobel Peace Prize. In 2009, the OLE released a memorandum specifically opining that Obama’s acceptance of the prize did not violate the Emoluments Clause, because the prize had been awarded by a private institution, and not by a foreign government. President Obama accepted the award and donated the proceeds to a number of charities. Nothing in OLE’s 13-page memo, though, indicated that the President – even one who was a Nobel laureate—was exempt from the Emoluments Clause. On this issue, my money is on all judges involved ruling that if the Emoluments Clause was good enough for Obama, the OLE, and the Nobel Prize, it’s good enough for Trump and his hotels. President Trump may have argued that a President “cannot have a conflict of interest,” but something tells me that argument is not likely to fly in a courtroom.
If the Dems’ lawsuit is able to withstand the triple threat, it will move on to the discovery phase, which could be great fun in itself. Defendant Trump would almost certainly be required to turn over income tax returns as part of the discovery process – and that alone would be a major win for his political opponents. We’ll keep you posted as this case makes its way through the courtroom and the newsroom.
[Image via screengrab]
This is an opinion piece. The views expressed in this article are those of just the author.