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The Fourth Circuit’s Failure of Imagination with Emoluments

Trump has refused to fully divest from his business and continues to receive money from constitutionally prohibited sources, writes Brennan Center Fellow Ciara Torres-Spelliscy.

Before Trump’s presidency, the emoluments clauses of the Constitution, which prohibit presidents from accepting gifts and money from foreign and domestic governments, had never been litigated. But now, three different lawsuits allege that Trump is in nearly daily, ongoing, and continuous violation of both the foreign and domestic emoluments clauses. Every previous U.S. president has managed to abide by these clauses, but now the courts, grappling with these parts of the Constitution for the first time, are fumbling the ball with hostile rulings against plaintiffs.

On July 10, the Fourth Circuit showed a remarkable lack of imagination when it ruled in District of Columbia v. Trump that Maryland and the District of Columbia, the plaintiffs, lacked standing to sue Trump for his alleged violation of the Constitution’s two emoluments clauses by taking money from foreign and domestic governments through his businesses. The decision overruled a lower court, which had found they had standing to sue. In the mind of these Fourth Circuit judges, there is nothing wrong with a president profiting off of his office, even though the Constitution specifically prohibits certain revenue streams.

The plaintiffs had argued that they were competitively harmed by the Trump International Hotel in D.C., which also generated profits from constitutionally prohibited sources including foreign and domestic governments.

Previous presidents were careful to abide by the emoluments clauses. President Andrew Jackson, for example, asked Congress for permission to keep gifts from Simon Bolivar — specifically, a gold trinket. Congress said no, and Jackson complied and donated the item to the U.S. government instead of pocketing it for himself. President Lincoln was also rebuffed when he wanted to keep gifts from the King of Siam. Congress turned him down too, and the gifts were given the Department of the Interior.

President Ronald Reagan, meanwhile, was worried that his pension from California potentially violated the domestic emoluments clause. So he asked for an opinion from the Office of Legal Counsel (OLC), which issued an opinion that the fully vested state pension was not a barred emolument.

Trump is deviating from his predecessors. He has not asked for permission from Congress to keep foreign emoluments, and he doesn’t appear to be seeking an OLC opinion that might provide a legal fig leaf. Instead, Trump has refused to fully divest from his businesses, which continue to collect money from constitutionally prohibited sources like foreign diplomats and from states.

The Fourth Circuit was the first appellate court to issue an opinion interpreting the emoluments clauses; the Second Circuit, in New York, is simultaneously considering a separate emoluments suit (CREW v. Trump).  

Anyone who listened to the oral arguments in District of Columbia v. Trump would not be surprised at the eventual outcome. The lawyer for the plaintiffs seemed tongue-tied on the question of what remedy to request from the court and ended up insisting that divestment of the Trump Hotel by the president was the proper remedy. This suggestion did not go over well with the judges.

The three-judge panel’s hostility towards the plaintiffs was reflected in the written opinion. For example, the Fourth Circuit held it against the plaintiffs that they were asserting rights directly under the Constitution. As the court wrote: “The suit is brought directly under the Constitution without a statutory cause of action, seeking to enforce the Emoluments Clauses which, by their terms, give no rights and provide no remedies." This is odd. In other cases, the fact that a litigant could point to part of the Constitution as part of their cause of action would likely be considered a plus, not a minus.

When federal courts rule on standing, they are often punting on the bigger issues in the case. One notorious standing case was Dred Scott, in which the Supreme Court decided that a formerly enslaved person suing for his freedom did not have standing in federal court. In District of Columbia v. Trump, the Fourth Circuit is claiming that Maryland and D.C. are not sufficiently injured to sue Trump for alleged emoluments violations. But the ruling fails to deal with the elephant in the room — the copious evidence that the president is in violation of both clauses.

The Fourth Circuit also stated, “Maryland’s theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel’s other characteristics.” This is also a strange legal conclusion, since the plaintiffs had produced quotes from foreign diplomats saying that they were booking the Trump hotel to curry favor with the president. Additionally, the fact that it’s a fancy hotel doesn’t change the constitutional status of the money flowing through it.

The logic of the Fourth Circuit’s ruling is disturbing because it could set a precedent in which no one has standing to sue to enforce the emoluments clauses. If one of the 50 states cannot sue, it’s unclear who could.

There are two paths forward. The plaintiffs could petition the full Fourth Circuit or petition the Supreme Court to hear their case. One way the plaintiffs might improve their prospects, whichever court hears this next, is to consider asking for disgorgement of unconstitutional profits, instead of asking for divestment as the remedy. Disgorgement means that Trump would have to give back monies from unconstitutional sources to prevent unjust enrichment. By contrast, divestment would mean that Trump would have to give up ownership of his businesses. Disgorgement is less severe, and it is similar to what past presidents have done. Like his predecessors, such as President Jackson, Trump should not be allowed to pocket foreign gold.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Image: Chip Somodevilla/Getty)