June 16, 2017
You are forgiven for having never thought about the Emoluments Clause, a chunk of Article I of the United States Constitution, prior to January 2017. There isn’t much to it—just 49 words:
"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."
In modern English, the Emoluments clause basically says that a United States official—like one Donald J. Trump, for example—cannot receive gifts or money (“emolument” literally means “salary”) from foreign governments. Why not? Because officials might be swayed by the gifts and end up in thrall to a foreign power. We used to worry about it mostly because of ambassadors:
"These words were added out of a concern from the 1700s that American ambassadors, on the far side of the ocean, might be corrupted by gifts from rich European powers. Benjamin Franklin, for instance, had accepted a snuffbox festooned with 408 diamonds from the King of France. John Jay accepted a horse from the King of Spain."
Both Franklin and Jay shuffled off this mortal coil around 200 years ago and the Emoluments Clause hasn’t ever really come up all that much since. We all basically agreed that it was a sound principle not to let your elected and appointed officials get all tangled up with foreign governmental and business interests.
Well, it didn’t really come up until Donald Trump.
Donald Trump, via his Trump Organization, actually takes a lot of money in from foreign governments. In and of itself, that’s not a bad thing. American corporations, particularly ones with locations in places like Washington D.C., contract with foreign governments regularly. Dignitaries need places to stay, things to eat, merchandise to buy. But when you become president and refuse to divest yourself of all your business interests, you create a problem, because you are indeed then taking money from foreign powers regularly. And Trump’s business interests aren’t just hotels and restaurants. He gets coin from foreign-government-owned broadcasters who want to, for some godawful reason, show reruns of The Apprentice, for example.
Because of this, Trump now faces not one, not two, but three Emoluments Clause lawsuits. The first one was initially filed by liberal watchdog group CREW (Citizens for Responsibility and Ethics in Washington) in January and revised in April. CREW initially filed the lawsuit alleging that they need declaratory relief—that even if no violation has yet happened, they need a court to decide that the clause is violated so CREW (and the rest of America) doesn’t have to keep chasing down Trump to sue him every time a payment to a foreign government is made.
However, there’s some question as to whether that is enough of an injury—the potential for future generic harm—to let CREW alone be the plaintiff in this sort of lawsuit. Because of that, they revised the lawsuit to add a restaurant industry group whose restaurants and employees compete with Trump-owned properties in New York and Washington D.C. Those plaintiffs can allege direct harm: they are potentially losing business from foreign governments.
It makes more sense, as a foreign government hoping to influence the president, to spend your money at one of his restaurants or hotels or apartment buildings because Trump is equal parts amoral and craven and might consider trading favors for money. (The CREW lawsuit also added a booker for a hospitality company who faces some of the same problems: Why place your event with a run-of-the-mill hotel in Washington D.C. when you can instead stay at a Trump-owned property and throw the leader of the free world some cash and hope he likes your country a bit better than before?)
Think of the CREW lawsuit as a lawsuit on behalf, essentially, of every private entity that will lose money to Trump over the years—restaurant owners, hotel bookers, hotel owners, wedding planners, and so on. Trump has already made clear he’s happy to promote his businesses generally by linking them to his presidency. Look at Mar-a-Lago: An official State Department website praised the virtues of Mar-a-Lago as the Winter White House. Trump doubled the cost of Mar-a-Lago membership (to a cool $200K) right after he took office. Actual people are losing actual money when foreign government personnel book with Trump instead of the competition.
On June 12, Washington D.C. and Maryland also sued Trump under the Emoluments Clause. That lawsuit focuses on lost tax revenue: Maryland and D.C. are missing out on the revenue they would normally see (either from state-owned businesses or from private businesses located in those two places) because that revenue is diverted to businesses in Trump’s organization.
More importantly, though, the June 12 lawsuit gets at why the Emoluments Clause is so important: It is, at root, an anti-corruption clause. If the president (or other United States officials) can take money from foreign powers, they can be tempted by those powers.
Consider, as the lawsuit does, the case of the Chinese trademarks. Trump had been trying to get trademark protection for Trump-related things in China for over a decade, to no avail. Trump came into office and indicated to Taiwan’s president that he might reconsider the “One China” policy and officially acknowledge Taiwan. Then he reversed course and told China he would honor the policy. Five days later, he got his trademarks.
A mere two days later, the third lawsuit hit. This one was filed by 196 Democratic members of Congress. Why can members of Congress sue? Because of the “Consent of the Congress” language in the Emoluments Clause: If Trump wanted to receive an official blessing for his right to grift, he could actually go before the Congress and ask their permission to receive an emolument. The problem, of course, is that Trump doesn’t want just one payoff. He wants his entire presidency to be a payoff, and he can’t exactly go looking for congressional consent multiple times a day.
Trump has tried sporadically to push back against allegations he violates the Emoluments Clause, but the attempts are pretty feeble. (And why wouldn’t they be? His party controls the Congress and has made clear that there is really nothing he could do that would result in impeachment, so he has no real fear of that.) First, he said that the Trump Organization would track and forward all profits from foreign governments to the U.S. Treasury. Just a few months later, though, the Trump Organization said it wouldn’t fully identify and return payments to the Treasury because it’s really hard to track such things and would “diminish the guest experience of our brand.”
"Trump properties [intend] to only return profits on identifiable direct payments from foreign governments, foreign embassies, foreign political parties, royal family members and sovereign wealth funds―who would have to proactively identify themselves as such, without requiring the Trump property to seek out this information another way.
The Trump Organization policy notably excludes payments from foreign government-owned corporations or other entities often used by foreign governments."
Imagine being both so arrogant and so grifty that you couldn’t even manage to stick to this incredibly limited promise.
Enough time has passed since the filing of the first lawsuit that Trump had to file a response, so we are given the first detailed look at how he thinks he should get out from under this. First, they allege no one has been harmed. To some extent, that’s probably the best bet to get the CREW lawsuit dismissed. Standing to bring a lawsuit requires that you show a harm that has happened to you personally—you generally can’t sue on behalf of other people. CREW can’t show a direct harm that has happened to it, and none of the other plaintiffs can yet directly point to any loss. They can only allege that they might have lost business. However, standing is a complicated concept, and CREW has certainly already thought this through because they have a legal dream team behind this suit.
Next, Trump argues that the law was never intended to cover business losses, but instead is only an anti-corruption measure. Even if that were the case, that is an odd way to think about it: “Let me, the president, screw over individual businesspeople in the United States. As long as it isn’t done with the intent to benefit foreign governments, everything is cool.” What?
Finally Trump says that the CREW plaintiffs read the term “emolument” too broadly and that it can’t possibly cover things like payments for hotel rooms. The lawsuit filed by Maryland and D.C. does a good job of knocking out that last talking point.
"The Foreign Emoluments Clause is properly interpreted to cover monetary or nonmonetary transactions. Indeed, the text of the clause bars the receipt of both a "present" and an "Emolument," which together cover anything of value, including without limitation payments, transactions granting special treatment, and transactions above marginal cost."
Trump cares more about money than any president before him. He cares less about the country than any president before him. This is a toxic combination. There might be a person on this Earth that could have access to vast sums of money from foreign governments and let it not influence them, but that person is not Donald Trump.
The president can get out from under all of these lawsuits by divesting himself of his business interests or putting his assets into an actual blind trust, not a “My kids own everything, my son Eric will tell me about how the businesses are doing, and I can get money from the organization at any time” trust.
These are not normal times: You’re not crazy to worry whether the current occupant of the presidency of the United States is so weak and greedy as to be corruptible by foreign money. Given that Trump already appears entirely compromised by Russia, why wouldn’t he throw away America’s security and stability for a little extra dough? If one of these lawsuits succeeds, we could at least stop that particular bit of dystopia from happening.