Norimasa Tahara/Yomiuri Shimbun/AP Photo
The lobby of Trump International Hotel in Washington is full with businessmen and visitors the day after the presidential election, November 9, 2016.
The Second Circuit Court of Appeals recently reinstated an Emoluments Clause lawsuit against President Donald Trump. The court ruled that the plaintiffs, who operate hotels and restaurants in the United States, have standing to sue him on the grounds that foreign government entities have patronized Trump’s hotels, restaurants, and event spaces “in the hope of enriching the President and earning a reward from him through official Presidential action favorable to their government.”
This brings to mind an old story about a trial court judge whose young daughter had a table selling Girl Scout cookies right outside the courtroom. Although the judge couldn’t see the cookie stand, he knew that every lawyer, party, and witness had to walk right past it on the way into the courtroom. In one bitterly contested case, the losing attorney protested, “But Your Honor, I bought four boxes.” The judge was unmoved, especially when the winning lawyer added, “So did I.”
Although the story is probably apocryphal, it has been widely used to clarify a basic principle in judicial ethics: A judge should not exploit his or her office for personal gain. In our example, there are three possible consequences of the cookie selling, and all of them are wrong. In the worst scenario, of course, the judge would have been openly soliciting bribes, basing his rulings on the number of boxes purchased by lawyers. But even if the judge was scrupulously fair, the presence of the table was still coercive, creating an impression that the court could be influenced by cookie buying. And even if no lawyer felt coerced, they still might have purchased multiple boxes in the erroneous hope that it might sway the judge.
In other words, there is no set of assumptions in which the judge could ethically allow his daughter to sell cookies in the courthouse, no matter how fairly he intended to treat the litigants who came before him. The mere possibility of influence was enough to affect the lawyers’ conduct, whether they regarded cookie buying as a burden or an opportunity.
Most lawyers have no difficulty understanding why the cookie-selling judge was acting unethically, and indeed, the archetype is based on real cases of judges who used their chambers to sell antiques, self-published books, and all sorts of other stuff. It is plainly wrong to exploit public office for personal gain, even in situations that appear to fall short of outright bribery or extortion.
And then there is Donald Trump.
The Constitution’s Emoluments Clause forbids any federal officer from taking payments or presents from a foreign government. President Trump owns hotels, restaurants, and event spaces, and unlike previous presidents, he has not placed his personal assets into a blind trust, continuing to receive regular business updates.
In approving the lawsuit by competing hotels, the appellate court cited “the President’s statements to the effect that he favors governments that spend money at his establishments.” One diplomat said, “Isn’t it rude to come to come to [Trump’s] city and say, ‘I am staying with your competitor?’” The competitive advantage that the hotels complain about is clear. “[D]espite being comparable in other relevant respects,” the court wrote, “the President’s establishments offer government patrons something that Plaintiffs cannot: the opportunity, by enriching the President, to obtain favorable governmental treatment.”
The purpose of the Emoluments Clause is to prevent foreign governments from influencing federal officials by channeling money to them. While patronage at Trump’s hotels looks a lot like attempted bribery, the constitutional prohibition is actually broader than that. Unlike a criminal prosecution for bribery or public corruption, enforcement of the Emoluments Clause does not require a quid pro quo or outright exchange of cash for an “official act.” Instead, it aims to prevent even the possibility of improper motivation, by barring federal officeholders from collecting cash from foreign governments for any reason at all.
It is possible that Trump is so unshakable in his virtue that he can collect money from foreign governments without allowing it to affect his judgment. It is also possible that the foreign governments will cancel each other out by spending equal amounts at Trump’s hotels. It was also possible that our apocryphal judge didn’t care whether any of the lawyers stopped at his daughter’s cookie stand—but don’t try telling that to anyone with a case before him.
The Emoluments Clause—and the applicable judicial ethics rules—rightfully presume that nobody is that pure, and that even the appearance of favoritism is corrosive of good government. Trump is resisting that conclusion, in public and in court. You can draw your own conclusions about why.
