Draining the Trump Swamp: Emoluments Clause lawsuits are heating up

On Friday, the Trump Justice Department argued that President Trump’s businesses are legally permitted to accept payments from foreign governments while he is in office, and thus Trump is not in violation of a constitutional clause barring the acceptance of emoluments. Foreign payments to Trump’s businesses are legally permitted, argues Justice Department:

In a 70-page legal brief responding to a liberal watchdog group’s lawsuit, the administration said that market-rate payments for goods or services made to the president’s real estate, hotel and golf companies do not constitute emoluments as defined by the Constitution.

Advocates from the Citizens for Responsibility and Ethics in Washington (CREW) brought the suit against Trump in January, shortly after he entered office. The group asserted that because Trump-owned buildings take in rent, room rentals and other payments from foreign governments — which may seek to curry favor with him — the president has breached the emoluments clause.

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Justice Department attorneys referenced a series of Washington’s letters and speeches to support their argument.

“Neither the text nor the history of the Clauses shows that they were intended to reach benefits arising from a President’s private business pursuits having nothing to do with his office or personal service to a foreign power,” the administration argued. “Were Plaintiffs’ interpretation correct, Presidents from the very beginning of the Republic, including George Washington, would have received prohibited ‘emolument.’”

Joshua Zeitz, who taught American history and politics at Cambridge University and Princeton University, writes at Politico, Trump’s Defense of Taking Foreign Money Is Historically Illiterate:

CREW and its co-plaintiffs argue that the president stands in clear violation of the Constitution’s “emolument’s clause,” a provision stipulating that no federal official “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.” In plain English, does Trump’s sprawling business empire benefit directly from commercial agreements with foreign governments or entities chartered by or representing foreign governments? And if so, is he in violation of the Constitution?

Trump’s lawyers believe that the question itself is silly, for surely the founding fathers confronted similar dilemmas. And if they were in violation of the very document that they authored, the Justice Department’s lawyers write, “surely someone would have raised concerns about whether foreign governments or government-owned corporations may have been among the customers of the farm and other products regularly exported by early Presidents. Yet, there is no evidence of these Presidents taking any steps to ensure that they were not transacting business with a foreign or domestic government instrumentality.”

Legal consideration aside, the DOJ’s motion is sorely deficient in its use of history. The question isn’t whether James Madison sold crops to a foreign state entity. (We don’t know.) Rather, it’s why the founders bothered to draft the emoluments clause in the first place, and what ideological worldview guided their thinking. The answer isn’t one that the current president or his lawyers would welcome.

The Emoluments Clause reflected common republican (small ‘r’) wisdom. The founders believed that the new nation should be governed by men who enjoyed sufficient economic wherewithal to place the common good above private, pecuniary concerns. They valued disinterestedness, virtue and independence and feared the day that someone beholden to a foreign or domestic economic power might hold high office.

The Emoluments Clause was a product of the founders’ shared republican ideology. And Donald Trump is the eventuality they feared above all.

The generation of American leaders that fomented the revolution and established the new country shared a common intellectual framework. Grounded in the 18th-century ideology of English Whig opposition to the governing elite at Westminster – an ideology that was itself rooted in the classical Greek and Roman republican tradition – this political dogma was radical in its day. It assumed that society was organic – comprised of men and women of shared background, needs and concerns – and that public affairs should be governed by a natural elite who were independent of economic or political coercion and who would have no trouble subordinating private needs to the commonweal. In a small, relatively homogenous nation comprised mainly of settlers (or descendants of settlers) from northern Europe, concentrated along the eastern coastline, and predominately agrarian, it was easy to believe that there was even such a thing as a commonweal.

When members of the founding generation looked from a distance at Great Britain, they saw a corrupt, increasingly urban and industrial society in which greed, avarice, corruption and self-interest infected the body politic. Such a reality conflicted with the great, ancient republics of Rome and Athens, where “disinterested” statesmen – men who, as the English essayist, Samuel Johnson, described them – were “superior to regard of private advantage; not influenced by private profit” – held sway. In London, government was a tawdry competition between merchants, factory owners, indebted farmers and workingmen who competed for favor or privilege.

This thinking influenced the founders’ approach to government. They believed, as one of George Washington’s admirers put it, that public affairs should be entrusted to men “not so much in pursuit of praise and emolument to yourself as of real good to your fellow creatures.” As Thomas Jefferson and many other founders understood the matter, true republicans were landowners – self-sufficient, yeoman farmers or independent artisans and shop owners who produced what they needed to feed, clothe and shelter their families, who owed no debts, did not depend on another man for wages and were not subject to the “casualties of caprice of customers.”

Most of the original 13 states imposed property or income requirements on the electoral franchise because the governing elite believed that day laborers, tenant farmers and factory employees could not demonstrate sufficient independence. They were bound to their employers, creditors and landlords and unable to act selflessly and in the pure interest of the common good. Government, one prominent theorist offered, should rest with “the better sort because they are less liable to temptations, less fearful of the frowns of power, [and] may reasonably be supposed of more improved capacities than those of an inferior station.”

The founders did not just, or even principally, fear a dependent and self-interested rabble. They believed that powerful despots could leverage their economic and political power to pull strings. They looked with disgust at the random patronage that British nobles bestowed on their supplicants: titles, leaseholds, franchises and contracts. They detected a similar pattern in the way that colonial governors doled out favor – courtesy of the favor they enjoyed, in turn, from their sponsors in London – to “fawning parasites and cringing courtiers,” as Samuel West, a Massachusetts clergyman and patriot, described the dynamic. John Adams similarly frowned on the dependence of weak actors on the “Passions and Prejudices, the Follies and Vices of great Men in order to obtain their Smiles, Esteem and Patronage and consequently their favours and Preferments.” Such lowly sorts had no business governing free men.

Like early restrictions on the franchise, and like the Electoral College – that arcane political instrument that entrusted the selection of the president to a handful of elite white men who were in theory best equipped to exhibit republican virtue and disinterestedness – the Emoluments Clause was very much a product of the founding generation’s shared ideology. That ideology, rooted in the country opposition of English Whigs, rued the day when a foreign despot might influence America’s public affairs through economic exertion, patronage and flattery. Such was the stuff of the dark days of colonial subjugation. It should never intrude upon the noble experiment that was the American Constitution.

In other words, the Emoluments Clause was one of several founding devices that had just such a man as Donald Trump—whose complex business web makes him uniquely susceptible to foreign influence—in mind.

To be sure, the founding fathers didn’t always meet the high standards that they set for themselves. Thomas Jefferson lived wildly beyond his means; he was perpetually in debt to domestic and foreign creditors, as were other revolutionaries – particularly in the Southern tobacco colonies, where plantation owners were often steeply in hock to Scottish factors. George Washington was the model of the farmer-solder-statesman, but he made his considerable fortune in land speculation – a tawdry, commercial affair, including (as Trump’s defenders note) the purchase and sale of western land from the new federal government. It rarely if ever occurred to such men that they were more compromised, less dependent and more “interested” than the common day laborers or employed craftsmen who comprised a fast-growing portion of America’s landscape, and who, in the early Republic, did not always enjoy full political rights.

Hypocrisy is common to every political generation. But President Trump’s lawyers are fighting the wrong historical battle. They’re laboring to demonstrate that even George Washington (!) may have sold farm products to entities affiliated with foreign governments. Thus, who cares if Trump’s kids sign a bunch of deals with foreign governments, or if the bottom line ultimately benefits the president? Everyone does it.

That argument misses the point entirely. The Emoluments Clause was meant to prevent exactly the situation that many of Trump’s critics and skeptics now fear: the elevation to high office of men and women who are deeply indebted to, and economically dependent on, outside actors – worse, still, foreign actors who knowingly use patronage and pressure to make slaves of free men. Substitute Vladimir Putin for King George, and you can effectively resurface the same battle-worn tracts from the 1770s and 1780s.

Does Trump’s business organization owe large debts to lenders aligned with the Kremlin? Do foreign governments extending him favorable leases, expedited or preferable site and permitting rights or direct business expect something in return? Did his senior adviser and son-in-law, Jared Kushner, whose family business is reportedly in dire financial straits, seek financial relief from Russian creditors? And did those prospective creditors anticipate a quid pro quo?

We don’t know the answers to those questions, because the Trump administration and Trump family have been stubbornly opaque in their dealings with the American public. But one thing is clear: The Emoluments Clause was born of profound concern that just such a danger might one day arise, and it is historically illiterate to argue otherwise.

It took more than two centuries for the founders’ worst nightmare to surface. But that’s where we are in June 2017.

The Trump Justice Department also appears to be ignoring its own long-standing interpretation of the Emoluments Clause. The Department of Justice Office of Legal Counsel has held, Applicability of the Emoluments Clause to Non-Government Members of ACUS:

The language of the Emoluments Clause is both sweeping and unqualified. See 49 Comp. Gen. 819, 821 (1970) (the “drafters [of the Clause] intended the prohibition to have the broadest possible scope and applicability”). It prohibits those holding offices of profit or trust under the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from “any . . . foreign State” unless Congress consents. U.S. Const, art. I, § 9, cl. 8 (emphasis added). . . . The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause.

Further, the Office of Legal Counsel held the Constitution is violated when the holder of an Office of Profit or Trust, like the President, receives money from a partnership or similar entity in which he has a stake, and the amount he receives is “a function of the amount paid to the [entity] by the foreign government.” This is because such a setup would allow the entity to “in effect be a conduit for that government,” and so the government official would be exposed to possible “undue influence and corruption by [the] foreign government[].”

On Monday, D.C. and Maryland will sue President Trump, alleging breach of constitutional oath:

Attorneys general for the District of Columbia and the state of Maryland say they will sue President Trump on Monday, alleging that he has violated anti-corruption clauses in the Constitution by accepting millions in payments and benefits from foreign governments since moving into the White House.

The lawsuit, the first of its kind brought by government entities, centers on the fact that Trump chose to retain ownership of his company when he became president. Trump said in January that he was shifting his business assets into a trust managed by his sons to eliminate potential conflicts of interests.

D.C. Attorney General Karl A. Racine (D) and Maryland Attorney General Brian E. Frosh (D) say Trump has broken many promises to keep separate his public duties and private business interests. For one, his son Eric Trump has said the president would continue to receive regular updates about his company’s financial health.

The lawsuit, a signed copy of which Racine and Frosh provided to The Washington Post on Sunday night, alleges “unprecedented constitutional violations” by Trump. The suit says Trump’s continued ownership of a global business empire has rendered the president “deeply enmeshed with a legion of foreign and domestic government actors” and has undermined the integrity of the U.S. political system.

“Fundamental to a President’s fidelity to [faithfully execute his oath of office] is the Constitution’s demand that the President … disentangle his private finances from those of domestic and foreign powers. Never before has a President acted with such disregard for this constitutional prescription.”

The suit could open a new front for Trump as he navigates investigations by special counsel Robert S. Mueller III and congressional committees of possible collusion between his associates and the Russian government during the 2016 presidential campaign.

If a federal judge allows the case to proceed, Racine and Frosh say, one of the first steps will be to demand through the discovery process copies of Trump’s personal tax returns to gauge the extent of his foreign business dealings. That fight would most likely end up before the Supreme Court, the two said, with Trump’s attorneys having to defend why the returns should remain private.

“This case is, at its core, about the right of Marylanders, residents of the District of Columbia and all Americans to have honest government,” Frosh said. To fully know the extent of Trump’s constitutional violations “we’ll need to see his financial records, his taxes that he has refused to release.”

“We’re getting in here to be the check and balance that it appears Congress is unwilling to be,” Racine said.

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The lawsuit, to be filed in U.S. District Court for the District of Maryland, will be the latest and most significant legal challenge to Trump over the issue of emoluments. The first was filed in January by Citizens for Responsibility and Ethics in Washington, a D.C.-based watchdog group. In March, a D.C. restaurant sued Trump, alleging the new Trump International Hotel in D.C. benefits from unfair advantages because of its close association with the president. And last week, a group of Democratic members of Congress said they plan to file suit soon. Each, however, has faced legal hurdles over standing to sue the president.

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The constitutional question D.C. and Maryland will put before a federal judge is whether Trump’s business ownership amount to violations of parts of the Constitution known as the foreign and domestic emoluments clauses.

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On the domestic side, the suit alleges Trump has received unconstitutional financial favors from the U.S. government. It says the U.S. General Services Administration, which handles federal real-estate, wrongly allowed Trump’s company to continue to lease the Old Post Office building, where Trump built his D.C. hotel, even though a clause in the contract said no elected official could remain on the lease.

The GSA initially said Trump would have to fully divest from the hotel after the election. But after Trump proposed increasing GSA’s budget, the suit says the agency issued a letter saying Trump was in full compliance.

The suit also alleges that Trump is violating domestic emoluments by creating a situation in which states feel compelled to compete for Trump’s favor, perhaps by offering zoning exemptions, waivers or other benefits to help his businesses.

After initially saying the Trump organization would not pursue new deals while he was in office, Trump’s sons announced last week that the company would begin building a network of new hotels in mostly red states that he won in last year’s election.

The suit by D.C. and Maryland says the two jurisdictions are faced with an “intolerable dilemma” to either go along with the Trump Organization getting special treatment, including possible lost local revenue or “deny such requests and be placed at a disadvantage vis-à-vis states and other government entities that have granted or will agree to such concessions.”

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Strict adherence to the emoluments clauses, D.C. and Maryland argue, “ensure that Americans do not have to guess whether a President who orders their sons and daughters to die in foreign lands acts out of concern for his private business interests; they do not have to wonder if they lost their job due to trade negotiations in which the President has a personal stake; and they never have to question whether the President can sit across the bargaining table from foreign leaders and faithfully represent the world’s most powerful democracy, unencumbered by fear of harming his own companies.”

The lawsuit seeks an injunction to force Trump to stop violating the Constitution, but leaves it up to the court to decide how that should be accomplished.