by Jackie Gardina
Local experts discuss the legal hurdles and issues facing President-elect Donald Trump in his first 100 days in office. This week, the President-Elect Trump and the Emoluments Clause.
Is President Trump violating the Constitution?
On Monday, Jan. 23, Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit alleging that President Donald Trump is violating the Constitution by allowing his hotels and other business operations to accept payments from foreign governments. Since his election, there have been repeated calls for President Trump to fully divest from his business and place the proceeds in a “blind trust” monitored by an independent trustee. As noted in last week’s column, Trump is not required by federal law to do so but several constitutional scholars, Supreme Court litigators and former White House ethics lawyers from both sides of the aisle have argued that if he didn’t he would be violating an obscure provision of the Constitution — the Emoluments Clause — the moment he took the oath of office.
The suit does not seek monetary damages; instead it asks a federal court in New York to order Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses; loans for his office buildings from certain banks controlled by foreign governments; and leases with tenants like the Abu Dhabi tourism office, a government enterprise, and the Industrial & Commercial Bank of China Ltd., a state-controlled entity. In addition, it requests a copy of Trump’s federal tax returns to assess what income or other payments or loans Trump has received.
The lawsuit faces at least two hurdles. First, the plaintiffs must establish that they have “standing” to sue. Second, there is no consensus on how to interpret the clause. In over two centuries of existence, the Supreme Court has not ruled on its meaning.
The first hurdle, standing, requires that CREW establish that Trump’s actions have injured them. It isn’t enough to allege that the American public will be hurt; the CREW must assert an injury particular to it. CREW asserts that it has had to divert limited resources — both money and personnel — to address Trump’s constitutional violations.
By all measures this is a slender reed on which to rest standing. Legal scholars immediately questioned its sufficiency, arguing that a Washington, D.C., hotel that can allege that it’s losing business due to foreign diplomats and foreign countries using the Trump International Hotel would be more successful. But finding a hotel willing to bring suit against the new president presents its own challenges.
Assuming that CREW establishes standing, it must next prove that Trump’s business entanglements with foreign governments violate the Emoluments Clause. The clause provides that “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office or title, of any kind whatever, from any King, Prince or Foreign State.” Simply defined, an emolument is an advantage, benefit or profit received for holding an office. The Emoluments Clause reflects the Framers’ attempt to ensure that no federal officeholder would be influenced by gifts of any kind from a foreign government.
CREW argues that Trump violates the clause when he receives any payment from a foreign government. In addition to his Washington, D.C., hotel, which foreign countries and diplomats have stated they will use, Trump Organization has many existing overseas investments, such as loans from foreign government-controlled banks and the sales and rentals of real estate to foreign governments. So long as Trump is both president and invested in the Trump Organization, these and other business affairs could be magnets for special treatment in commerce, taxation, regulation and investigation — benefits from foreign powers that qualify as gifts or emoluments.
Sheri Dillon, Trump’s attorney, has rejected a broad interpretation of the clause. According to Dillon, the Framers did not understand the Emoluments Clause to prohibit transactions with foreign states through fair-market-value exchanges. Under this narrower construction, Trump is not violating the clause when he is engaged in arms-length transactions at fair market value.
In the end, the court may never decide the meaning of the clause. Without standing, CREW’s lawsuit may be dismissed without the court considering the merits of the claim or ordering Trump to release his tax returns so the full extent of his foreign investments are known.
Santa Barbara and Ventura Colleges of Law (COL) Dean Jackie Gardina’s experience in higher education includes both academic and administrative positions.
Established in 1969, COL, an accredited nonprofit institution was founded to expand opportunities and broaden access to legal education. For more information, visit www.collegesoflaw.edu.