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Supreme Court Ducks an Opportunity on Trump Emoluments Cases

The justices have left an anti-corruption hole that Congress should fill.

February 19, 2021
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Brendan Smialowski/AFP/Getty

Amidst the turmoil that began 2021 — insur­rec­tion, impeach­ment, inaug­ur­a­tion, and acquit­tal — some consequen­tial Supreme Court news fell under the radar. In Janu­ary, the justices dismissed two cases about then-Pres­id­ent Trump’s alleged viol­a­tions of the Emolu­ments Clauses, which are the Consti­tu­tion’s guard­rails against pres­id­en­tial corrup­tion. In doing so, the Court forfeited a golden oppor­tun­ity to clarify just what these mandates mean for future pres­id­ents. And its refusal to rule one way or another may inad­vert­ently encour­age another pres­id­ent to brazenly lever­age his or her power for profit.

So what are the Emolu­ments Clauses, and what do they dictate? There are actu­ally two of these provi­sions in the Consti­tu­tion: one foreign and one domestic. The latter sets the pres­id­ent’s salary, and it bars both the federal govern­ment and the states from giving the pres­id­ent a raise or any bonuses. The Foreign Emolu­ments Clause applies to federal offi­cials, includ­ing the pres­id­ent, prohib­it­ing them from accept­ing money or gifts from foreign govern­ments unless they receive permis­sion from Congress. (Of course, Congress never gave Trump permis­sion to keep foreign emolu­ments because he never bothered to ask.)

As I wrote about here, the founders could not have thought that a pres­id­ent getting a gold trinket from a foreign prince was a prob­lem, but giving a pres­id­ent far more in value in cash through a busi­ness would be fine.

Trump viol­ated both Emolu­ments Clauses from day one, in part because he never truly relin­quished his busi­nesses, and in fact could “with­draw profits” from his not-so-blind trust whenever he pleased. This presen­ted ongo­ing conflicts of interest. For example, the governor of Maine stayed at the Trump Inter­na­tional Hotel in DC on the Maine taxpay­ers’ dime. This would certainly seem to viol­ate the Domestic Emolu­ments Clause. And then there were the Saudi lobby­ists, bank­rolled by their govern­ment, who also paid for rooms at the Trump Inter­na­tional Hotel, spend­ing almost $300,000 in three months — an ostens­ible breach of the Foreign Emolu­ments Clause. Evid­ently, Trump’s busi­nesses continu­ally raked in money from consti­tu­tion­ally prohib­ited sources.

Follow­ing these incid­ents and more, three separ­ate groups filed suit against Trump during his first year in office for viol­at­ing the Emolu­ments Clauses. One group consisted of an ethics watch­dog group and indi­vidu­als who worked in the hospit­al­ity industry (CREW v. Trump), another involved hundreds of members of Congress (Blumenthal v. Trump), and the third was filed by Mary­land and the District of Columbia.

Notably, all three of these cases presen­ted unpre­ced­en­ted legal issues: in the more than 200 years since our nation was foun­ded, no court had ever litig­ated either Emolu­ments Clause. So how did the Supreme Court deal with these novel cases? For all intents and purposes, it didn’t.

In the suit brought by Congress, the justices simply declined to review the case in Octo­ber, thus uphold­ing the ruling by the DC Circuit Court of Appeals that members of Congress lacked the legal stand­ing to sue under the Foreign Emolu­ments Clause. And on Janu­ary 25, the Supreme Court dismissed the other two cases as moot since Trump was no longer in office.

At the very least, the optics of this are embar­rass­ing: the justices sat on these cases for months and waited for Trump to get voted out of office instead of grap­pling with the weighty legal ques­tions. This has echoes of Bush v. Gore where the Supreme Court’s running out the clock benefited one party.

Had the Supreme Court affirmed the lower court cases in the CREW v. Trump and DC v. Trump, then discov­ery against the Trump Organ­iz­a­tion would have begun. Now the Emolu­ments cases have been unce­re­mo­ni­ously ended without resol­u­tion.

But there is a bigger prob­lem here. Donald Trump is unlikely to be the last busi­nessper­son to win the pres­id­ency. If we have a Pres­id­ent Bezos or a Pres­id­ent Theil, then their foreign busi­ness entan­gle­ments are likely to be larger than the hotelier pres­id­ent’s. But any future pres­id­ent can use the Trump exper­i­ence as a guide to avoid the consti­tu­tional prohib­i­tion on foreign emolu­ments. So long as foreign govern­ments’ polit­ical spend­ing is laundered through a future pres­id­ent’s busi­ness, he or she can make the argu­ment that this is perfectly fine since Trump did it.

This preced­ent is also partic­u­larly obnox­ious for any pres­id­ent who anti­cip­ates serving only one term. They can accept domestic emolu­ments from states that want to curry favor, safe in the know­ledge that the federal courts are unlikely to move quickly enough to stop their uncon­sti­tu­tional beha­vior. All they have to do is run out the clock. Litig­a­tion in Trump’s cases took exactly four years, and at the end of the day he got to keep all the likely monet­ary gains — even if they were plainly uncon­sti­tu­tional.

These cases moved slowly in part because judges could not agree on what “an emolu­ment” even was, nor could they recon­cile who had stand­ing to sue. Then, when the issues finally made it before the highest court, the justices relin­quished the oppor­tun­ity to set an expli­cit preced­ent on pres­id­en­tial prof­it­eer­ing.

Fortu­nately, Congress has the power to clear up any confu­sion and dictate precise stand­ards on emolu­ments. For starters, it could pass legis­la­tion that guar­an­tees a right to sue to enforce both Emolu­ments Clauses. Congress should also clearly define what counts as an emolu­ment, ensur­ing that it includes money funneled through busi­ness entit­ies. Such new legis­la­tion would help to curb future abuses from future pres­id­ents.

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