The Emoluments Clause Could Be a Tipping Point in Trump’s Downfall

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Trump is the only president for at least 40 years who has not liquidated his business assets or put them in a blind trust.

On April 30, a federal district judge rejected Trump’s motion to throw out the lawsuit filed by approximately 201 members of the U.S. Senate and House of Representatives alleging that Trump has flagrantly violated the Foreign Emoluments Clause. The case was largely overlooked as national attention has focused on Trump’s obstruction of justice and his efforts to block further congressional scrutiny of his abuses of power.  

U.S. District Judge Emmet G. Sullivan, in a comprehensive 48-page opinion, ruled that the narrow definition of “emoluments” advanced by Trump’s lawyers “disregards the ordinary meaning of the term as set forth in the vast majority of Founding-era dictionaries; is inconsistent with the text, structure, historical interpretation, adoption, and purpose of the Clause; and is contrary to Executive Branch practice over the course of many years.” 

This was not the first time a federal judge has allowed such a case to go forward against Trump. Last July, in an equally comprehensive 52-page decision, U.S. District Judge Peter J. Messitte denied Trump’s attempt to dismiss a lawsuit filed by the attorneys general of the District of Columbia and the State of Maryland. Both these lawsuits in essence challenge Trump’s outrageous declaration that “I have a no-conflict situation because I’m president,” a haunting echo of Richard Nixon’s infamous and doomed claim that “when the president does it, that means it is not illegal.”

In gratitude to Benjamin Franklin for his service as American minister to France from 1776 to 1785, King Louis XVI gave him a snuffbox festooned with 408 diamonds. Two years later when the Founders wrote the new Constitution, they rejected absolute monarchy but feared that public officials could be corrupted by foreign gifts. They adopted the Foreign Emoluments Clause, which provides that “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 whatsoever, from any King, Prince, or foreign State,” (U.S. Const. art. I, § 9, cl. 8). The Domestic Emoluments Clause further provides that the president shall receive compensation for his services but prohibits the president from receiving “any other Emolument from the United States, or any of them.” (U.S. Const. art. II, § 1, cl. 7).

For the first time since the Constitution was ratified, both federal courts agreed with the plaintiffs that “emoluments” means “any profit, gain, or advantage” and rejected the president’s more narrow definition of “emoluments” to mean only a payment made as compensation for official services. Judge Messitte found Trump’s arguments “unpersuasive,” and “misplaced,” reflecting a “cramped interpretation” of the Constitution, which ignored the “large accumulation of historical evidence” and would lead to an “essentially absurd result.”

The lawsuit filed by the members of Congress asserts that Trump “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments.” In particular, they allege he owns “more than 500 separate entities—hotels, golf courses, media properties, books, management companies, residential and commercial buildings set up to capitalize on licensing deals,” from which the president himself has acknowledged “his businesses receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President.” Trump is the only president for at least 40 years who has not liquidated his business assets or put them in a blind trust.

Judge Messitte, in one of his most pointed comments, observed that “[w]here, for example, a President maintains a premier hotel property that generates millions of dollars a year in profits, how likely is it that he will not be swayed, whether consciously or subconsciously, in any and all of his dealings with foreign or domestic governments that might choose to spend large sums of money at that hotel property.” 

Both judges noted that the plain language broadly encompassed “any present, Emolument, Office, or Title, of any kind whatsoever,” without exception. Looking at what “emoluments” meant to ordinary citizens during the nation’s founding, based on historical scholarship, they each found that every English dictionary definition of “emolument” from 1604 to 1806 included plaintiffs’ broad definition, while only 8 percent of those dictionaries also included the president’s definition. The courts both found that the plaintiffs’ definition reflected the Framers’ intention to address their “profound concern” over “possible foreign influence” with “broad anti-corruption provisions.”

Having determined the legal definition of emoluments, both judges found that the plaintiffs’ factual allegations, if proven, met that standard. For example, the attorneys general specifically allege that “foreign governments or their instrumentalities have patronized the Trump International Hotel, spending government funds to stay at the Hotel, eat at its restaurants, and sponsor events in the Hotel's event spaces.” In particular, the Kingdom of Saudi Arabia spent $270,000 at the hotel between October 1, 2016, and March 31, 2017, and the Embassy of Kuwait moved its National Day celebration from another hotel to the Trump International Hotel on February 22, 2017, a month after Trump was inaugurated.

Trump’s appeal of Judge Messitte’s ruling was heard by the U.S. Court of Appeals last March but a decision has yet to be issued. At the oral argument, one of the judges questioned whether the president could be sued in a civil action for violating the emoluments clause and that instead the remedy rests with Congress. Ironically, the remedy the Constitution grants Congress is impeachment. Indeed, Edmund Randolph at the Virginia ratifying convention in 1788 remarked that the emoluments clause protected the country against the danger of “the President receiving Emoluments from foreign powers” and asserted that a president who violates the clause “may be impeached.”

Regardless of the outcome of the lawsuits, the litigation provides another ideal opportunity to marshal the evidence supporting the remedy intended by the founders—namely, impeachment.

The Mueller Report established how Trump welcomed the gift of Russian interference in the 2016 election to help defeat his opponent and advance his candidacy. Once in office, Trump has continued to enjoy foreign gifts and benefits. But when he became president, he swore that he would “faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Violating the express terms of the emoluments clauses may be the clearest evidence that Trump has committed “high crimes and misdemeanors,” justifying impeachment.

 

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