Special Installment - Precedent on the President: Bad for Business
Donald J. Trump continues to encounter difficulties as President of the United States of America, with the filing of lawsuits against him by the attorneys general of Maryland and D.C. Why? They claim that Trump has violated the Emoluments Clause. Enter your con law professor, law students:
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.
ARTICLE I, SECTION 9, CLAUSE 8
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
ARTICLE II, SECTION 1, CLAUSE 7
"Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."
Alexander Hamilton
So what does this mean in today's context? The clause prevents government corruption by prohibiting domestic and foreign gifts and payments to government officials. Trump's various business interests raised eyebrows during his election campaign, with the phrase "conflict of interest" mentioned numerous times. Trump's staff briefly addressed the issue, but public reporting reveals that Trump has accepting foreign benefits without disclosing to or seeking consent from Congress. Plaintiffs' complaints argue that Trump's lack of disclosure is injurious to members of Congress, the American people, and it calls into question any policy he tries to enact. The Government has filed a motion to dismiss in response.
What is the Emoluments Clause anyway??
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.
ARTICLE I, SECTION 9, CLAUSE 8
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
ARTICLE II, SECTION 1, CLAUSE 7
"Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption."
Alexander Hamilton
So what does this mean in today's context? The clause prevents government corruption by prohibiting domestic and foreign gifts and payments to government officials. Trump's various business interests raised eyebrows during his election campaign, with the phrase "conflict of interest" mentioned numerous times. Trump's staff briefly addressed the issue, but public reporting reveals that Trump has accepting foreign benefits without disclosing to or seeking consent from Congress. Plaintiffs' complaints argue that Trump's lack of disclosure is injurious to members of Congress, the American people, and it calls into question any policy he tries to enact. The Government has filed a motion to dismiss in response.
Today's event on the issue, presented by the American Constitution Society, featured commentary from litigants in the various lawsuits, a historian, and an opposing viewpoint. In the coming two months, be on the lookout for amended complaints, amicus briefs, and responses to current litigation.
"We believe his creating an unprecedented constitutional crisis. Never have we had a president who has flatly refused to distance himself from his financial holdings. We are here, because the normal checks and balances are not working. It's falling on, increasingly, the attorney generals. We know of at least one business in D.C. [The Trump Hotel]. It's significant and flagrant because of how transparent the foreign interests are. [Trump's business interests] are opaque. We don't really know what's going on with his foreign businesses. The President of the United States could cure this problem simply, literally, in a matter of days. It is incredibly important to note and emphasize that we're here not because the plaintiffs are edging for a lawsuit or looking for publicity or notoriety."
- Attorney General Karl Racine
"This is the largest congressional suit in history (over 196 members). I want to focus in particular on five words in the Clause: the consent of the Congress. They [The Framers] didn't believe that anyone should be the judge of their own integrity. Disclosure was really key to the Framers."
- Brianne Gorod, representing the congressmen
"These hotels and restaurants are in direct competition with Trump for both foreign and domestic business. There are diplomats who have said that they're moving their business to the Trump hotel, because they want the favor of the President. The relief we're seeking is a declaration that the President is in violation of these clauses and an injunction to stop the President from violating them."
- Deepak Gupta, explaining his clients who feel they are directly hurt by Trump's violation. See his co-authored piece on courts and foreign emoluments
"We have an anti-competitive argument that we are making. Because the Trump Hotel is in the District, it has created an anti-competitive environment."
- Stephanie Litos, representing the District of Columbia, filing suit with the State of Maryland
'I disagree with the substantive argument that this violates the Emoluments Clause. I think that going after a sitting president who did win an election with something that would be seen as a technicality . . . that theory will be seen as a coupe, as opposed to other things we could be putting our efforts to."
- Trevor Burrus, research fellow for Cato Institute's Center for Constitutional Studies, offering the counter argument to the lawsuits
"We avoid some of the thorny legal particularities on issues like standing and really hone in on the historical meaning of the term emolument."
- Attorney General Karl Racine
"This is the largest congressional suit in history (over 196 members). I want to focus in particular on five words in the Clause: the consent of the Congress. They [The Framers] didn't believe that anyone should be the judge of their own integrity. Disclosure was really key to the Framers."
- Brianne Gorod, representing the congressmen
"These hotels and restaurants are in direct competition with Trump for both foreign and domestic business. There are diplomats who have said that they're moving their business to the Trump hotel, because they want the favor of the President. The relief we're seeking is a declaration that the President is in violation of these clauses and an injunction to stop the President from violating them."
- Deepak Gupta, explaining his clients who feel they are directly hurt by Trump's violation. See his co-authored piece on courts and foreign emoluments
"We have an anti-competitive argument that we are making. Because the Trump Hotel is in the District, it has created an anti-competitive environment."
- Stephanie Litos, representing the District of Columbia, filing suit with the State of Maryland
'I disagree with the substantive argument that this violates the Emoluments Clause. I think that going after a sitting president who did win an election with something that would be seen as a technicality . . . that theory will be seen as a coupe, as opposed to other things we could be putting our efforts to."
- Trevor Burrus, research fellow for Cato Institute's Center for Constitutional Studies, offering the counter argument to the lawsuits
"We avoid some of the thorny legal particularities on issues like standing and really hone in on the historical meaning of the term emolument."
- Gautham Rao, Historian who is co-authoring an amicus brief on behalf of CREW. See his recent Slate article here, arguing against statements that Trump has not violated the Emoluments Clause.
Additional Reading:
John Mikhail, on the Definition of 'Emolument'
Mikhail, John, The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806 (June 30, 2017). Available at SSRN: https://ssrn.com/abstract=2995693
Additional Reading:
John Mikhail, on the Definition of 'Emolument'
Mikhail, John, The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806 (June 30, 2017). Available at SSRN: https://ssrn.com/abstract=2995693
Resources on the Emoluments Clause and Pending Cases
· ACS Blog: Because President Trump Has Chosen Not To Go to Congress, Members of Congress Must Go to the Courts by Brianne Gorod
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