For the second time a federal district court judge has allowed a suit to proceed contending that Donald Trump is violating the Constitution’s Emoluments Clause. It’s likely that the entire question about to what extent Trump can manage and profit from his businesses while in the White House will wind up before the Supreme Court. But for now, Congress — who were the beneficiaries of the ruling — has won a critical early round victory.
The decision marks the second time in two months Trump has failed to win dismissal of an Emoluments Clause suit. In a separate case brought by the attorneys general of the District of Columbia and Maryland, a federal judge ruled in August that that case could proceed as well.
Ultimately, both cases have the same goal: full and complete disclosure of Trump’s business activities while president and, if necessary, the halt of any financial gain he has achieved while in office. Given the firestorm-every-news-cycle nature of his presidency, it’s easy to forget that the American people are still waiting for such routine disclosures as Trump’s tax returns.
At issue are these 49 words in Article I:
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.
Among the many norms Trump has obliterated is that unlike every president since John F. Kennedy, he has refused to place his far-flung assets in a blind trust. While there is a trust, Trump’s separation from his businesses is paper thin.Trump has said that he will receive regular financial updates and that the trust permits him to withdraw money at any time for any reason.
Given that foreign governments use his properties, the suit brought by members of Congress alleges Trump is receiving “presents” or “emoluments” without — as the provision says — their consent. “The founders ensured that federal officeholders would not decide for themselves whether particular emoluments were likely to compromise their own independence or lead them to put personal interest over national interest,” the complaint reads. “An officeholder, in short, should not be the sole judge of his own integrity.”
In announcing the suit last June, Sen. Richard Blumenthal (D-Conn.) said, “What we are seeking first and foremost is disclosure. We cannot consent to what we don’t know.” A former state attorney general who is the lead plaintiff, Blumenthal added, “The truth is we have no clue about the president’s investors. How much is Russian money?”
But before even contemplating those questions, there is the issue of whether Congress has standing to sue in the first place. Congress had an uphill climb in convincing Washington, D.C., federal judge Emmett Sullivan that it was proper for the courts to even hear the case. Both Supreme Court and D.C. Circuit precedent severely limit Congress’s ability to turn to the courts when it claims injury by executive actions. The general view is that the courts should not solve a problem that Congress has the wherewithal to take care of by itself.
But here is where Trump’s stubborn refusal to heed norms has legal consequences. Sullivan found that the Emoluments Clause is crystal clear that the president must secure Congress’s permission to receive emoluments. But since Trump has not bothered to ask Congress’s consent, he is nullifying any vote they could have taken. Congress has no other remedy except to turn to the courts. “Plaintiffs adequately allege that the president has completely nullified their votes in the past because he has accepted prohibited foreign emoluments as though Congress had provided its consent. And he will completely nullify their votes in the future for the same reason, as plaintiffs allege that he intends to continue this practice.”
Part of Sullivan’s analysis relied on the Supreme Court ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission. The court found the Arizona state Legislature could bring a challenge to a redistricting commission created by ballot initiative because the measure negated their power to draw district lines. (The Legislature eventually lost.) Sullivan reasoned that Congress, like the Arizona Legislature, has a legislative function that has been crippled by Trump’s refusal to abide by the Emoluments Clause.
In addition to the emoluments suits brought by Congress, D.C., and Maryland, there is a third case pending in federal court in New York. A district court dismissed the action, and the U.S. Court of Appeals for the Second Circuit is set to hear oral argument in an appeal of that ruling October 30.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.