Outside the Beltway

Another Emoluments Clause Violation By Trump

Newly discovered evidence shows that foreign governments have expanded their leasing of space from at least one Trump-owned office building in New York City.

Doug Mataconis · Thursday, May 2, 2019 · 8 comments

Reuters has an interesting report today about what appears to be another Emoluments Clause controversy for President Trump, who is already facing a number of lawsuits relating to the extent to which he is benefiting personally from business-related revenue generated for foreign companies and governments:

The U.S. State Department allowed at least seven foreign governments to rent luxury condominiums in New York’s Trump World Tower in 2017 without approval from Congress, according to documents and people familiar with the leases, a potential violation of the U.S. Constitution’s emoluments clause.

The 90-story Manhattan building, part of the real estate empire of Donald Trump, had housed diplomats and foreign officials before the property developer became president. But now that he is in the White House, such transactions must pass muster with federal lawmakers, some legal experts say. The emoluments clause bans U.S. officials from accepting gifts or payments from foreign governments without congressional consent.

The rental transactions, dating from the early months of Trump’s presidency and first revealed by Reuters, could add to mounting scrutiny of his business dealings with foreign governments, which are now the subject of multiple lawsuits.

Congressional staffers confirmed to Reuters that the Trump World Tower lease requests were never submitted to Congress. Elijah Cummings, chairman of the House Oversight and Reform Committee, said his committee has been “stonewalled” in its efforts to obtain detailed information about foreign government payments to Trump’s businesses.

“This new information raises serious questions about the President and his businesses’ potential receipt of payments from foreign governments,” Cummings said in a statement to Reuters. “The American public deserves full transparency.”

A State Department spokesperson referred Reuters to the Justice Department because the subject involved “matters related to ongoing litigation.” The Justice Department declined to comment. The White House referred a request for comment to the State Department and the Trump Organization, which did not comment.

The 1982 Foreign Missions Act requires foreign governments to get State Department clearance for any purchase, lease, sale, or other use of a property in the United States. Through the Freedom of Information Act, Reuters obtained diplomatic notes sent to the agency under this requirement from early 2015 until late 2017.

The records show that in the eight months following Trump’s January 20, 2017 inauguration, foreign governments sent 13 notes to the State Department seeking permission to rent or renew leases in Trump World Tower. That is more solicitations from foreign governments for new or renewed leases in that building than in the previous two years combined.

The governments of Iraq, Kuwait, Malaysia, Saudi Arabia, Slovakia, Thailand and the European Union got the green light to rent a combined eight units in Trump World Tower and followed through with leases, according to other documents viewed by Reuters and people familiar with the leases. Five of those governments – Kuwait, Malaysia, Saudi Arabia, Thailand and the European Union – had also sought to rent units there in 2015 and 2016, State Department records showed.

Reuters could not confirm whether the State Department signed off on two other lease requests from Algeria and South Korea and three additional requests from Kuwait.

(…)

According to the State Department records obtained by Reuters, which covered the period from January 2015 through September 2017, Trump World Tower was the only Trump-affiliated building in the United States where foreign governments sought to lease or buy units.

In 2017, the median monthly asking rent for units in Trump World Tower was $8,500, according to real estate website StreetEasy. That was more than 2.5 times the median in the surrounding neighborhood, known as Turtle Bay.

The Emoluments Clause controversies surrounding the President started out as debates among legal scholars regarding provisions of the Constitution that had not been interpreted by any court of record in the United States since the adoption of the Constitution itself. Over the past two years, though, the issue that the two clauses raise has given rise to litigation across the nation and allegations of self-dealing and what amounts to what some might call influence pedaling through Trump’s businesses in a form that has never been seen with any previous President.

The claims being made against Trump are based on two provisions of the Constitution that, until this ruling, have never been litigated before or ruled upon by a Judge at any level of the Federal Judiciary or in any of the states in the 229 years since the Constitution was ratified.The first provision, which has been called the “Foreign Emoluments Clause” is found in Article I, Section Nine, Clause 8 of the Constitution and prohibits any Federal official from receiving without Congressional consent “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” The second clause, which has been called the “Domestic Emoluments Clause” can be found in Article II, Section 1, Clause 7 and states that the President “shall not receive within that Period any other Emolument from the United States or any of them.” Generally speaking, an “emolument” is defined as ” the returns arising from office or employment usually in the form of compensation or perquisites.” ‘Until President Trump came along, though, there has never been any real discussion about what these provisions of the Constitution mean, what constitutes an improper emolument under either provision, or what the proper remedy is if a President is found to be in violation of either provision.

This has led, as I said, to a number of lawsuits being brought against the President, some of which have been more successful than others. One such case, brought early in the President’s first term, was brought by individuals in New York and Washington who alleged that they were being harmed by Trump’s violation of the law because their businesses competed with Trump’s hotels and restaurants, which were being used by foreign entities as a way to influence the President. That case was dismissed in December 2017 in no small part because the Judge held that the Plaintiff’s lacked standing to assert a claim under either clause because the damage they alleged was too ephemeral. The ruling, however, was so broad-based in its interpretation of the relevant clauses that many legal scholars wondered if, under its logic, any party could have standing to sue under the relevant provisions of the Constitution. Subsequent rulings in other cases, though, have been much more favorable to the Defendants.

One such lawsuit was brought by more than 200 Democratic members of the House and Senate. Their case was bolstered by the fact that the Constitution does technically permit some of what the Emoluments Clauses bar, but only if the transaction in question is approved by Congress. That case was brought solely under the Foreign Emoluments Clause because that provision provides that the President must obtain Congressional Consent before accepting any such emolument from a foreign official or state. In a ruling in early October, the Judge presiding over the Congressional lawsuit issued a ruling rejecting an effort by the Justice Department to dismiss the case, ruling that the more than 200 Democratic members of the House and Senate who are parties to the lawsuit had proper standing to bring the suit and whether the Complaint pleads sufficient facts to state claims on which relief can be granted. That case is proceeding forward at a somewhat slower pace, however, the presiding Judge did rule earlier just a few days ago that the lawsuit could proceed forward, rejecting arguments from the White House that the Members of Congress and the Senate lacked standing and that discovery in the lawsuit should be delayed.

The second major Emoluments Clause lawsuit was brought by the State of Maryland and the District of Columbia. In this case, the two jurisdictions alleged that the relationship between the President and The Trump Organization put the two governments in a situation where they are either required to provide favors to Trump-related business entities or face the prospect of some unstated damage as a result of not providing those favors.  In the first of a series of pre-trial rulings back in March of last year, the presiding U.S. District Court Judge ruled against the Trump Administration. rejecting the argument that the two jurisdictions lacked standing to pursue any claims against the President under these clauses. That ruling, however, did not touch on any of the substantive issues raised by the Emoluments Clause. In a later ruling in July 2018, though, the same Judge again ruled in favor of Maryland and the District in a historic ruling that marked the first time any Judge had ruled on substantive claims under these clauses. Roughly four months later, the presiding Judge, a Clinton appointee who has been on the bench since 1993 and took senior status in 2008. once again ruled in favor of the Plaintiffs, rejecting an Administration request that discovery be put on hold pending the resolution of their appeal of his July 2018 ruling.

This latest report by Reuters raises the prospect of yet another avenue for the Plaintiffs in the two cases noted above to pursue, and for Congress to investigate. One obvious target for investigation is the question of whether or not the State Department’s approval of the leases and purchases at issue was influenced by the fact that the transactions would benefit the President of the United States and his family. Additionally, these transactions were never approved by Congress and therefore may violate the Foreign Emoluments Clause specifically, thus lending more weight to the claims brought in both cases under the Foreign Emoluments Clause. This hardly means that the cases against Trump are now slam-dunk wins, but adding this to the record of what we already know it certainly appears as though this President has violated these parts of the Constitution on a number of occasions and that he will continue to do so unless Congress and the courts take action to prevent it.