Trump Emoluments Suit Moves Forward

200-odd Congressional Democrats are taking an odd route to go after corruption.

Congressional Democrats are taking a curious route to checking the President.

Congressional Democrats are suing President Donald Trump for using his office for personal financial gain. A Federal judge has dismissed Executive Privilege arguments.

Democrats in Congress can move ahead with their lawsuit against President Trump alleging that his private business violates the Constitution’s ban on gifts or payments from foreign governments, a federal judge ruled Tuesday.

The decision in Washington from U.S. District Judge Emmet G. Sullivan adopted a broad definition of the anti-corruption law and could set the stage for Democratic lawmakers to begin seeking information from the Trump Organization. The Justice Department can try to delay or block the process by asking an appeals court to intervene.

In a 48-page opinion, the judge refused the request of the president’s legal team to dismiss the case and rejected Trump’s narrow definition of emoluments, finding it “unpersuasive and inconsistent.”

The lawsuit is one of two landmark cases against Trump relying on the once-obscure emoluments clauses of the Constitution.

In a case brought in Maryland by the attorneys general of D.C. and Maryland, Justice Department lawyers representing the president have succeeded in temporarily blocking subpoenas for financial records and other documents related to Trump’s D.C. hotel.

The congressional case, brought by about 200 Democrats, extends beyond the hotel and provides a potential new avenue for investigators to gain access to a broader array of Trump’s closely held finances.

Trump’s lawyers argued that the prohibition applies only to payments received for government action taken by a president in his official capacity. The clause, they argue, should not be considered a blanket bar on private business transactions with foreign governments.

Sullivan noted that the lawsuit alleges the president — without seeking permission from Congress — has received payments for hotel rooms and events from foreign governments, as well as licensing fees paid by foreign governments for his show “The Apprentice” and intellectual property rights from China.

The emoluments cases, which could eventually end up at the Supreme Court, appear to mark the first time federal judges have interpreted these clauses and applied their restrictions to a sitting president. The lawsuits were early arrivals to what is now a wide range of investigations and legal battles over the president’s business interests and what information he and his family will be required to provide about them.

WaPo, “Congressional Democrats’ emoluments lawsuit targeting President Trump’s private business can proceed, judge says

Trump fans will likely take umbrage that Judge Sullivan is a black man appointed to his post by Democrat Bill Clinton. But it’s worth noting that he was previously appointed to two DC judgeships by Republicans George H.W. Bush and Ronald Reagan.

I’ve been arguing from Day 1 of his administration that violations of the Emoluments Clauses, and personal corruption more generally, were the most obvious grounds for impeachment. It’s simply outrageous that he’s profiting off a hotel—leased from the government in violation of the law—and funneling taxpayer money into his various personal properties including Mar a Lago.

It’s baffling, then, that they’re pursuing this matter through the third branch of government. It made some sense when the President’s party, which has been shamefully spineless when it comes to his turpitude, controlled the House of Representatives. But the Democrats have had the majority there since the beginning of January. They have all the power they need to investigate these misdeeds without going to court.

Further, as Doug Mataconis discussed extensively at the time, a Federal judge ruled in December of 2017 that the courts had no jurisdiction over Emoluments cases, since the Constitution assigns to Congress the authority to grant approval. Whether that’s true is disputable, given the lack of precedent and rulings from higher courts. But he correctly observed, “Congress is not a potted plant. It is a co-equal branch of the federal government with the power to act as a body in response to Defendant’s alleged Foreign Emoluments Clause violations, if it chooses to do so.”

That the application of the Emoluments Clauses to a sitting President hasn’t been the subject of previous judicial ruling isn’t surprising, really. None of his forty-three predecessors have engaged in anything like Trump’s self-dealing.

Indeed, one of the many ironies of the Trump presidency is that one of his repeated campaign themes was that, because he was so rich, he couldn’t be bought. But no one has made more money from the office while still in it.

FILED UNDER: Congress, Donald Trump, Law and the Courts, Presidency, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Kit says:

    Trump fans will likely take umbrage that Judge Sullivan is a black man appointed to his post by Democrat Bill Clinton.

    People are losing faith in the judiciary, at least to the extent that political matters are concerned. I find this at least as worrisome as Trump. It’s politics all the way down, at least as far as the Right is concerned.

  2. James Joyner says:

    @Kit: Yes. Trump has gone out of his way to further politicize the judiciary and I don’t think we’ll recover any time soon.

  3. drj says:

    I’ve been arguing from Day 1 of his administration that violations of the Emoluments Clauses, and personal corruption more generally, were the most obvious grounds for impeachment. […]

    It’s baffling, then, that [Democrats are] pursuing this matter through the third branch of government.

    Not baffling at all. They’re simply recognizing that Senate Republicans will always put their fealty to Donald Trump above their (supposed) allegiance to lawfulness.

    I guess Democrats are hoping that they will have more luck with the judiciary (until their case reaches the SC, that is).

    It’s not just that “the President’s party […] has been shamefully spineless when it comes to his turpitude,” it’s that the GOP in its current form simply doesn’t care anymore about the rule of law when it concerns one of their own.

    It’s open and it’s brazen. And we should stop pretending otherwise.

    15
  4. steve says:

    ” Trump has gone out of his way to further politicize the judiciary”

    A lot of that credit goes to McConnell. Remember that in the last 2 years of the Obama presidency he refused to have hearings on a lot of nominees. When Trump took office there were tons of positions waiting to be filled, to say nothing of Garland and SCOTUS.

    Query- Is Trump going to bear all of these legal costs or is that coming out of taxpayer monies? If we have to pay to defend his corrupt money making it is going to be hard to take.

    Steve

  5. JKB says:

    Got it. Theory is that it is a violation if foreign entities purchase publicly available goods and services at market prices. But it is not a violation of the emoluments clause for foreign entities to “give” millions to a “charity” that a cabinet secretary and candidate for the presidency as well as a former president materially profit from.

  6. James Joyner says:

    @JKB:

    Theory is that it is a violation if foreign entities purchase publicly available goods and services at market prices.

    Yes, especially if they’re buying them precisely to curry favor with the official. That’s why all recent Presidents have put their assets into blind trusts—to remove even the whiff of impropriety in that regard.

    But it is not a violation of the emoluments clause for foreign entities to “give” millions to a “charity” that a cabinet secretary and candidate for the presidency as well as a former president materially profit from.

    Former Presidents can’t violate the Emoluments Clauses because they’re not officials. I was only vaguely aware of the Clauses before Trump made them such a hot button issue but was vehement that the Clinton Foundation was indeed an outrageous conflict of interest. I think it does some good things. But, yes, the Clintons benefitted significantly and I thought it highly problematic when Hillary was Secretary and a candidate for President. After pressure, she did, at least, vow to close the Foundation if she were elected.

    I wrote about this dozens of times (Google has 267 hits for “Clinton Foundation” here but some are likely duplicates) during the campaign. It turns out, though, that she lost and he’s the President. That means he’s subject to scrutiny under these Clauses and she isn’t.

  7. Moosebreath says:

    @James Joyner:

    “Trump has gone out of his way to further politicize the judiciary and I don’t think we’ll recover any time soon.”

    I think McConnell has done far more than Trump has to politicize the judiciary. Trump does not say that his greatest accomplishment has been packing the court with ideological clones. McConnell has, repeatedly.

  8. James Joyner says:

    @Moosebreath: Yes, that’s fair. But what I mean is precisely the sort of thing I alluded to in the OP and @Kit called out in the first comment: questioning the legitimacy of rulings by judges appointed by the opposition party and/or who aren’t white. Coming from the President, that’s even more insidious than McConnell’s extreme hardball tactics in helping keep seats open for a Republican President and then ramming those picks through.

  9. Just nutha ignint cracker says:

    @JKB: For me, the thing that is most embarrassing about Trump and graft emoluments is that he’s not even particularly good at it. Last time I checked the value to Trump of all of what he’s been doing that is questionable is only in the 10s of millions of dollars. Or do put it bluntly in the context of a multi-trillion dollar budget, he’s not even getting all of the change lost in the sofa. I’d think that he’d be better at this, but in scale, he’s the county sheriff’s detective in a neighboring county to Seattle who was found to have taken $16,000 in bribes from drug dealers–over a period of 20 years. IOW, not even a two-bit huckster but a bargain basement one.

    It’s just embarrassing!

  10. Barry says:

    James: “But the Democrats have had the majority there since the beginning of January. They have all the power they need to investigate these misdeeds without going to court.”

    Please note that Trump is refusing all subpoenas.

  11. Barry says:

    @JKB: Wrong, because ‘market price’ clearly increased when Trump became president.

  12. James Joyner says:

    @Barry:

    Please note that Trump is refusing all subpoenas.

    Sure. So, then you start citing people for Contempt of Congress. Stop approving budget requests. Congress has all manner of tools to deal with a recalcitrant president. These court cases will take years to play out.

  13. JKB says:

    @James Joyner:

    Apparently, retired service members can violate the emoluments clause, but retired presidents can’t? Of course, retired presidents are far more likely to get a big speaking fee then use their “office” as former President to earn that fee on the behalf of a foreign government.

    But in that DoD explainer, they never mention products, nor products provided by a corporation in which the member might be the majority stock holder. One supposes that is where the current case will revolve. As well as the price of the product and its relation to the open market price for the product.

    Unlikely much will come of this, but it will make good blog and “fake news” fodder.

  14. An Interested Party says:

    @JKB: Well at least Trump is saving money where you are concerned…you whore for him for free…