Democrats Want Court to Curb Trump’s ‘Emoluments’

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By Kenneth P. Doyle

Congressional Democrats suing President Donald Trump over alleged violations of the Constitution’s foreign emoluments clause said they expect the Justice Department to move to dismiss their case, but hope the court will step in and curb Trump’s behavior ( Blumenthal v. Trump, D.D.C., Civil No. 17-1154, filed 6/14/17).

“What President Trump has demonstrated repeatedly is his contempt for the law,” said Sen. Richard Blumethal (D.-Conn.), who along with Rep. John Conyers (D-Mich.) is leading the new legal effort against Trump. The lawsuit, filed in the U.S. District Court in the District of Columbia, has nearly 200 Democrats in the House and Senate as plaintiffs.

It is up to the courts, not Congress, to hold Trump accountable for clear violations of the plain language of the Constitution, Blumenthal said at a June 20 Capitol Hill news conference.

The clause in question prohibits a president or other federal official from taking foreign payments or other benefits “of any kind whatever” without approval from Congress.

Business Payments at Issue

Trump’s critics say he is routinely violating this provision because his businesses, including hotels and resorts, have been receiving payments from foreign customers, including foreign governments, and Trump’s businesses have been granted foreign trademarks and other licenses to operate in other countries. The Justice Department has argued in another case with similar allegations that payments and benefits to Trump’s businesses don’t count as emoluments to the president.

Blumenthal acknowledged that the foreign emoluments clause hasn’t been tested in court. This is because no president before Trump has ever gotten so close to the line of receiving questionable foreign payments and benefits, he said.

The new lawsuit asks the court to declare that Trump violates the Constitution when he accepts any monetary or nonmonetary benefit from a foreign state without first obtaining consent from Congress, and asks the court to enjoin Trump from receiving such benefits.

Trump “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments, " the suit said. Because of his financial interest, Trump “has accepted, or necessarily will accept, ‘Emolument[s]' from ‘foreign State[s]' while holding the office of President of the United States,” the suit said.

Series of Lawsuits

The Democrats’ lawsuit is the latest in a series of suits alleging that Trump is violating the law by maintaining his business interests while serving as president. Trump’s critics say he is inviting the appearance, if not the reality, of conflicts of interest by providing channels for those interested in affecting his decisions as president to make personal payments to him.

Other similar lawsuits have been filed by the Democratic attorneys general of Maryland and the District of Columbia, by the liberal nonprofit group Citizens for Responsibility and Ethics in Washington (CREW), and by businesses and others who argue they are hurt by unfair competition with Trump’s businesses.

The Justice Department responded to the lawsuit filed by CREW by arguing that other presidents, all the way back to George Washington, had received payments for goods and services from foreign governments without approval from Congress and without violating the Constitution. The department said the foreign emoluments clause doesn’t apply to the type of fair-market commercial transactions that benefit Trump: hotel bills, golf club fees, licensing payments, and office rent. The DOJ asked for dismissal of the CREW lawsuit.

Trump announced in January he would turn over operation of his businesses to his sons, Eric and Donald Jr., and Chief Financial Officer Allen Weisselberg. In addition, Trump’s business organization vowed not to make any new business deals outside the U.S. while Trump is president. Critics, including CREW, members of Congress, and the director of the federal Office of Government Ethics, said the plan failed to address conflicts of interest between Trump’s roles as president and as a billionaire businessman.

Unfair Competition Alleged

Another case against Trump has been filed by the owner of the Cork Wine Bar in Washington, Khalid Pitts, who alleges unfair competition because the Trump International Hotel has diverted hospitality business from his bar and restaurant. The lawsuit alleges that customers are being attracted to dine, drink, and hold events at the Trump hotel in order to curry favor with the president and seek favorable treatment by his administration. The suit also charges Trump’s ownership violates a lease the hotel has with the federal government to operate within the government-owned Old Post Office Building on Pennsylvania Avenue.

Forcing Trump to give up his ownership interest in the hotel would result in an “enormous personal financial loss for the President,” Trump’s lawyers in that case said.

The case against Trump and his company operating the hotel, Trump Old Post Office LLC, should be dismissed because Trump, as president, is immune from such litigation, Trump’s lawyers told Judge Richard Leon of the U.S. District Court for the District of Columbia in a May motion. The immunity doctrine applies because it is Trump’s position as president that allegedly gives Trump’s hotel an unfair advantage, the motion said.

“Supreme Court precedent establishes that the President is immune from claims based on the President’s Office,” said the motion filed by private attorneys for Trump, including former White House Counsel Fred F. Fielding and other lawyers with the firm Morgan, Lewis & Bockius.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at phendrie@bna.com

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