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How Will the Courts Handle the Trump Emoluments Cases?

Americans should know whether they’re voting for someone who is putting their own wallet ahead of the national interest.

February 20, 2019

When North Korean leader Kim Jong-un and Pres­id­ent Donald Trump meet for a second summit in Viet­nam from Febru­ary 27 to 28, keep an eye on whether the two discuss devel­op­ing hotels on North Korea’s beaches. This topic came up the last time they met, rais­ing the eyebrows of ethics watch­dogs worried that Trump is using his posi­tion to enrich himself uncon­sti­tu­tion­ally under the foreign emolu­ments clause.

The courts certainly have their hands full with the Trump pres­id­ency. In both CREW v. Trump and D.C. v. Trump, plaintiffs have argued that Trump is viol­at­ing the Consti­tu­tion’s foreign and domestic emolu­ments clauses by taking in prohib­ited monies from foreign kings and domestic states. Under the U.S. Consti­tu­tion, domestic emolu­ments are monies from the federal govern­ment or the fifty states that give a salary boost to the pres­id­ent. These are not allowed. The Pres­id­ent is also not allowed to keep foreign emolu­ments, or in other words money from foreign govern­ments, without the consent of Congress. The Pres­id­ent main­tains that he is allowed to accept both types of emolu­ments if they flow to him through his busi­ness. What we don’t know yet is how these cases will resolve this issue.

Under normal circum­stances, who stays in which hotel room would not raise a consti­tu­tional issue — but that changes when the hotelier is the pres­id­ent of United States. For example, after Trump became Pres­id­ent, lobby­ists repres­ent­ing the Saudi govern­ment paid for several hotel blocks at the Trump Inter­na­tional Hotel in Wash­ing­ton — book­ing 500 nights for at least $270,000, accord­ing to the Wash­ing­ton Post. This is poten­tially prob­lem­atic because U.S. pres­id­ents are prohib­ited from keep­ing foreign emolu­ments without the consent of Congress. Spoiler alert: Congress has not consen­ted to Trump keep­ing any foreign emolu­ments. In fact, 200 members of Congress are suing him over that fact in a third emolu­ments lawsuit called Blumenthal v. Trump, which alleges that Trump has conflicts of interest in least 25 differ­ent coun­tries.

Mean­while, on the domestic front, a Maine deleg­a­tion that included then-Governor Paul LePage paid for 40 hotel rooms in Trump’s D.C. hotel for $22,000, accord­ing to the Port­land Press Herald. The prob­lem is that those rooms were paid for on the taxpay­ers’ dime, poten­tially viol­at­ing the domestic emolu­ments clause which says that states are not allowed to augment the pres­id­ent’s base salary.

As I have writ­ten before, the CREW case is going nowhere fast, as the district court judge ruled that none of the plaintiffs had stand­ing to sue. The plaintiffs appealed that ruling to the Second Circuit, and a three-judge panel heard their appeal last Octo­ber but has not yet ruled.

Mean­while, in D.C. v. Trump, the district judge found that both the State of Mary­land and the District of Columbia had stand­ing to sue the pres­id­ent for the poten­tial viol­a­tion of both emolu­ments clauses. The case was poised to go into the discov­ery phase and the plaintiffs had issued a number of subpoenas. But the Depart­ment of Justice lawyers repres­ent­ing Trump asked the district judge for permis­sion to file an inter­locutory appeal — an appeal before the case is finished at the trial level — which could delay the resol­u­tion of the case. The trial judge refused, but the lawyers at DOJ threw a Hail Mary pass, asking the Fourth Circuit for a writ of manda­mus to direct the trial judge to allow the inter­locutory appeal. The Fourth Circuit will hear oral argu­ments on March 19; mean­while discov­ery is on hold.

It’s possible that both circuit courts will agree with the pres­id­ent and dismiss both cases. It is also possible that one circuit court will allow one of the emolu­ments cases to go forward while the other halts the compan­ion case. That scen­ario would create a circuit split, which would propel both cases towards the Supreme Court. Or it is possible that the pres­id­ent will lose across the board and face discov­ery from both sets of plaintiffs in ongo­ing suits.

Regard­less of outcome, clar­ity on the emolu­ments issue is needed not just for this admin­is­tra­tion, but poten­tially for future ones: Amer­ic­ans should know if they need to be concerned about voting for someone who poten­tially could put his or her own busi­ness interests ahead of the national interest. If Howard Schultz or Jeff Bezos or Michael Bloomberg runs for pres­id­ent next, Amer­ic­ans should know whether they’re voting again for someone who would run into an emolu­ments prob­lem on day one.

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

(Image: Gabri­ella Demczuk/Getty)