Emoluments Clause

  • June 14, 2017
    Guest Post

    *This piece originally appeared on Take Care

    by Brianne Gorod, Chief Counsel, Constitutional Accountability Center

    When President Trump took the oath of office, he swore to “preserve, protect and defend” the Constitution of the United States. Yet since he took that oath, he has been flagrantly violating a critical provision of the Constitution that was designed to ensure that the nation’s leaders would always put the national interest above their personal self-interest.      

    Today, Sen. Richard Blumenthal, Rep. John Conyers, and 194 other members of Congress have gone to federal court seeking to put an end to the president’s willful violations of the Constitution. We, at the Constitutional Accountability Center, are proud to represent them in this effort. 

    When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation. They understood what a threat corruption posed and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties. 

    In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.”  Although there has been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.” 

  • June 13, 2017
    Guest Post

    *This piece originally appeared on Take Care.

    by Leah Litman, Assistant Professor of Law, University of California, Irvine School of Law

    On Monday, the State of Maryland and the District of Columbia filed a lawsuit against Donald Trump. The suit alleges that the president is in violation of the Emoluments Clauses. (The “Emoluments Clauses” include the Foreign Emoluments Clause, which prevents office holders from accepting emoluments from foreign states or foreign officials without Congress’s consent, and the Domestic Emoluments Clause, which prohibits the president from receiving any emolument other than his salary for being president.)

    Maryland and D.C.’s suit is an intriguing development for many reasons. I will just focus on one here: Maryland and D.C.’s case introduces a new theory of standing into the emoluments litigation and given DOJ’s less than rousing defense of the legality of the president’s financial arrangements in another emoluments lawsuit, Maryland and D.C.’s suit should concern the president and his lawyers. 

    The New Theory of Standing. The emoluments suits filed to date have been brought by private parties—private organizations and private individuals arguing that they have been harmed, in their private capacities, by the president’s violations of the Emoluments Clauses. The private businesses (and individuals) argue that they are losing out on business to the president’s hotels and restaurants because of foreign and state officials’ desire to curry favor with the president by giving money to his hotels and restaurants, in which he continues to hold a financial stake. I have written some about this theory of standing before on this site.

  • May 25, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.  

    by Joshua Matz, Associate at  Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    Yesterday we learned that the Trump Organization has deemed it “impractical” to identify all payments that its hotels receive from foreign governments. Instead of asking guests a few simple questions, the Trump Organization will rely on estimates and assumptions about payments from foreign powers at its properties. It will use those figures—in unclear ways—to calculate total profits from foreign governments. And from time to time, it will write a check for this amount to the U.S. Treasury. 

    If the Trump Organization thinks that will solve Trump’s breach of the Foreign Emoluments Clause, it is mistaken. This plan responds to only a fraction of Trump’s emoluments and presents (those given by foreign powers to Trump through hotel rentals). And it is inadequate as a safeguard against emolument violations even in that limited context. The Constitution requires that Trump actually stop receiving foreign presents and emoluments, not that he forge an appearance of avoiding some of them. 

    The scope and danger of Trump’s constitutional violations are, by now, well known. Yet even with advance warning and the best lawyers his money can buy, Trump has never fielded a good defense to claims that he is violating the Foreign Emoluments Clause. In fairness to his lawyers, that is because there is not a good defense to be had: he is violating the Clause in nearly every conceivable way (short of accepting an office in Vladimir Putin’s government).

  • April 18, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    by Joshua Matz, Associate,  Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    There has just been a major development in the emolument clause litigation: CREW, which famously filed the first emoluments case on Trump’s first full day in office, has amended its complaint. In addition to bringing two new plaintiffs into the litigation—each with distinct and compelling theories of injury—CREW has produced a formidable and detailed list of Trump’s constitutional violations. 

    There is a lot to say about this development. For now, I will focus on a recent article with leaked information about how Trump’s lawyers might seek to defend him.

    Last week, the New York Times reported the DOJ will argue that “the court has no authority under the separation of powers doctrine to intervene; that power lies with Congress.” This suggests that Trump’s lawyers will rely on the so-called “political question doctrine,” which, in very limited circumstances, deprives federal courts of the power to decide constitutional questions.

    Such reliance would be grossly misplaced. Applying the political question doctrine here would require the court to rewrite and invert the plain text of the Foreign Emoluments Clause. It would be nothing short of absurd to deem the Foreign Emoluments Clause a “political question.” Indeed, as I will show in this post, that conclusion would require some heavy editing of the Clause:

    [N]o Any Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress is informed and thereafter denies consent.

    (I will not address the Domestic Emoluments Clause, for reasons that will soon become apparent.)

  • February 2, 2017
    Guest Post

    *Disclosure: The author is the Legal Director for Free Speech For People.  On Jan. 20, 2017, Free Speech for People jointly launched with RootsAction the national impeachment campaign at ImpeachDonaldTrumpNow.org.

    by Ron Fein, Legal Director, Free Speech for People

    Recently, President Trump’s ongoing violation of the Foreign Emoluments Clause has received significant attention. There is no need to repeat here the case-in-chief that President Trump is in violation of the Foreign Emoluments Clause. That argument has been made in careful detail in a December 2016 Brookings Institution white paper by Norman Eisen, Richard Painter and Laurence Tribe, amplified by a January 2017 essay by Joshua Matz and Laurence Tribe posted on the ACS web site, as well as in the federal court litigation by the nonprofit organization Citizens for Responsibility and Ethics in Washington.

    Let us take as given that President Trump has violated, and continues to violate, the Foreign Emoluments Clause. (We can reserve for another time the Domestic Emoluments Clause, as well as any potential violations arising from the executive order on immigration and possible defiance of federal court orders.) The present question is: is this an impeachable offense? The answer is clearly yes.