Emoluments Clause case can proceed to discovery

On Wednesday a federal judge allowed one of the three Emoluments Clause cases against President Trump to proceed to discovery — produce all of your tax returns! In Ruling Against Trump, Judge Defines Anticorruption Clauses in Constitution for First Time:

In the first judicial opinion to define how the meaning of the Constitution’s anticorruption clauses should apply to a president, Judge Peter J. Messitte of the United States District Court in Greenbelt, Md., said the framers’ language should be broadly construed as an effort to protect against influence-peddling by state and foreign governments.

He ruled that the lawsuit should proceed to the evidence-gathering stage, which could clear the way for an examination of financial records that the president has consistently refused to disclose. The Justice Department is expected to forestall that by seeking an emergency stay and appealing the ruling.

The two constitutional clauses at issue restrict a president’s ability to accept financial benefits or “emoluments” from domestic or foreign governments, other than his official salary. No federal judge before has ever interpreted what those bans mean for the president.

The plaintiffs in the lawsuit, the District of Columbia and the State of Maryland, say that Mr. Trump is violating those bans by accepting profits from the Trump International Hotel, a five-star hotel just blocks from the White House that is frequented by foreign and state officials. The judge earlier ruled that the local jurisdictions had standing to sue because the Trump hotel arguably siphons off business from their convention centers or hotels.

Mr. Trump has resisted efforts to force him to provide more details about his personal finances, and in particular has refused to release his tax returns.

* * *

The Justice Department had sought to dismiss the case, arguing that the constitutional restrictions do not apply to Mr. Trump’s interest in the hotel. But the judge said the department’s lawyers were defining an emolument far too narrowly.

“Sole or substantial ownership of a business that receives hundreds of thousands or millions of dollars a year in revenue from one of its hotel properties where foreign and domestic governments are known to stay (often with the express purpose of cultivating the president’s good graces) most definitely raises the potential for undue influence, and would be well within the contemplation of the clauses,” he wrote in a 52-page opinion.

He said the Justice Department was trying to equate an emolument with a bribe from foreign or state government officials. But the Constitution already defines bribery as an impeachable offense, and bribery is extremely difficult to prove, he wrote.

The weight of historical evidence shows that the framers meant the emoluments clauses to act as a broader check on influence-peddling that could influence a president’s decisions, the judge said.

“Where, for example, a president maintains a premier hotel property that generates millions of dollars a year in profits, how likely is it that he will not be swayed, whether consciously or subconsciously, in any or all of his dealings with foreign or domestic governments that might choose to spend large sums of money at that hotel property?” the judge asked in his opinion.

“How, indeed, could it ever be proven, in a given case, that he had actually been influenced by the payments?” he added. “The framers of the clauses made it simple. Ban the offerings altogether.”

* * *

Lawyers for the plaintiffs cheered the ruling.

“The decision is extremely important,” said Norman L. Eisen, who is the chairman of the Citizens for Responsibility and Ethics in Washington and acts as co-counsel for the plaintiffs. “It represents a major leap forward in being able to understand how Trump is profiting off the presidency.”

Judge Messitte seemed especially struck by one example cited by the plaintiffs. He noted that when Paul LePage, the Republican governor of Maine, visited Washington to meet with Mr. Trump on official business in February 2017, he and his staff stayed at the Trump International Hotel.

At a subsequent news conference with the governor, the president announced that he was reviewing decisions related to national monuments and parks that were adopted the year before by the Obama administration and opposed by the governor. The governor’s spokeswoman has said that Mr. LePage did not choose the Trump hotel in an attempt to please the president.

While this may be the first judicial decision on the Emoluments Clauses — largely because no president before has so blatantly disregarded these constitutional provisions — Judge Peter J. Messitte was briefed by the parties on the fascinating early history of the meaning and scope of the Emoluments Clauses as understood by the Founding Fathers.

Erick Trickey writes at the Washington Post, Move over, Trump. This president’s two lions set off the greatest emoluments debate.

Benjamin Franklin sailed home from France in 1785 carrying an awkward goodbye gift from King Louis XVI: an oval-shaped gold box that held a miniature portrait of the king, surrounded by 408 diamonds.

The extravagant box created a dilemma for Franklin. Goodbye presents to diplomats, customary in France, were banned by the United States. Fearful of the corrupting influence of wealthy Europe, the young country had adopted a strict rule: American officials could not accept gifts or second incomes from foreign governments. Careful not to violate the rule, Franklin offered the box to Congress, which let him keep it.

Today, 233 years later, the same rule that bound Franklin threatens to ensnare President Trump.

* * *

Until Trump’s election, few Americans were familiar with the term “emolument.” But the Founding Fathers saw the foreign emoluments clause as a key defense against other nations corrupting their new government. Part of the Constitution’s Article 1, Section 9, it reads, “No Person holding any Office of Profit or Trust under [the United States], 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.” The law, which guards against conflicts of interest and potential bribes, was invoked often in early American history.

The ban dates back to America’s first constitution, the Articles of Confederation. (Its inspiration was a 1651 Dutch requirement that foreign ministers reject diplomatic gifts.) The delegates at the 1787 Constitutional Convention included the ban in the new Constitution after Charles Pinckney of South Carolina “urged the necessity of preserving foreign ministers and other officers of the U.S. independent of external influence.”

At Virginia’s 1788 convention to ratify the Constitution, framer Edmund Randolph cited foreign temptations and Franklin’s dilemma as reasons for the clause. “A box was presented to our ambassador by the king of our allies,” Randolph told the delegates. “It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”

When another founder, George Mason, warned that “the great powers of Europe” might corrupt the president the way Russia had corrupted Poland, Randolph had a ready answer. “There is another provision against the danger … of the president receiving emoluments from foreign powers,” Randolph declared. “If discovered, he may be impeached.”

Because of the foreign emoluments clause, presidents including Andrew Jackson and Abraham Lincoln turned to Congress for instructions when foreign governments sent them gifts. Congress denied Jackson’s 1830 request to keep a gold medal from Colombian President Simón Bolívar. Lincoln alerted Congress after King Mongkut of Siam sent him a sword, two elephant tusks, and pictures of the king and his daughter. In 1862, Congress ordered Lincoln to deposit the gifts with the Interior Department.

Martin Van Buren, the nation’s eighth president, dealt with the 1800s’ largest, liveliest emoluments-clause dilemma.

In summer 1839, at the American Consulate in Tangier, trumpets announced the arrival of a procession of soldiers, sent by Abd ar-Rahman, the sultan of Morocco. The soldiers came bearing gifts: an “enormous, magnificent” lion and lioness.

The harried American consul, Thomas N. Carr, tried to refuse the lions, protesting that he — and the president — were barred by law from accepting them. The sultan’s emissary did not take no for an answer. “It will cost my head if I disobey,” the emissary said, according to Carr’s beleaguered letter to the secretary of state. “I shall leave them in the street.” Stuck, Carr put the lions up in a room in the consulate and wrote home, saying he would “anxiously await instructions.”

While the lions paced in the consulate, in spring 1840, the ship Sultaneesailed into New York City, bearing presents for Van Buren from Seyyid Said, the sultan of Oman: two Arabian horses, a Persian rug, some cashmere shawls, pearls and a sword. Apologetically, Van Buren wrote to the sultan(also known as the imam of Muscat) that “a fundamental law of the Republic … forbids its servants from accepting presents from foreign States or princes.” The ship’s captain insisted that the gifts should go to the U.S. government instead.

“I deem it my duty to lay the proposition before Congress,” Van Buren wrote to the Senate, “for such disposition as they may think fit to make of it.”

John Quincy Adams, the former president turned congressman, protested that Congress should refuse to consent to the gifts. “The president should receive no presents from any foreign power,” Adams argued on the House floor in June 1840. Despite Adams’ opposition, Congress authorized Van Buren to accept and sell the gifts from both sultans. The lions, shipped from Morocco to Pennsylvania, were auctioned off in Philadelphia’s Navy Yard in August 1840 for $375. The pearls, which weren’t sold, are in the Smithsonian’s National Museum of Natural History.

Today, federal law prohibits U.S. government employees, including the president, from accepting gifts worth more than $390 from foreign officials. Justice Department opinions warn that the foreign emoluments clause prohibits most federal employees from earning second incomes from foreign governments.

Before President Barack Obama accepted the Nobel Peace Prize in 2009, he got clearance from Justice Department lawyers who concluded that it wouldn’t violate the emoluments clause. (The Norwegian parliament appoints the nonprofit Nobel Committee, but Justice lawyers found that Norway’s government has “no meaningful role” in funding the prize or choosing its recipients. Obama gave the prize’s $1.4 million award to charity.)

Can federal officials, including the president, do business with foreign governments? The three lawsuits against Trump argue that the emoluments clause prohibits that, too. The case filed by Maryland and the District of Columbia has proceeded the furthest so far. Lawyers debated 18th-century dictionary definitions of “emolument” in court in Greenbelt in June. Trump’s lawyers argued for definitions that refer to profit from employment, while Maryland and D.C.’s lawyers argued that the more prevalent definition in the late 1700s included any profit or advantage.

In court, Trump’s lawyers also brought up a 225-year-old land deal struck by George Washington. In 1793, while Washington was president, he bought four plots of land in the District of Columbia from the federal government, in a land sale conducted by the D.C. commissioners, his appointees. “I had no desire … to stand on a different footing from every other purchaser,” Washington wrote to them.

Trump’s lawyers argued that Washington’s land deal is relevant to understanding the constitutional definition of an emolument. There’s also a domestic emoluments clause in the Constitution, which says that the president can’t receive “any other emolument” besides his salary from the U.S. or state governments. No one in 1793 treated Washington’s land deal as an emolument, Trump’s lawyers argue. So, they say, rent from a Chinese state-owned bank at Trump Tower isn’t an emolument either, nor are foreign diplomats’ bookings at the Trump International Hotel. (Still, just in case, the Trump Organization donated $151,000 to the U.S. Treasury in March, for unidentified “profits from foreign government patronage at our hotels and similar business” in 2017.)

But Washington’s example can go both ways. The first president often used the term “private emolument” in his letters, to mean personal profit. In April 1776, as the American commander in the Revolutionary War, Washington issued a proclamation warning that colonial merchants who furnished British warships with “supplies of provision” would be treated as enemies. In doing so, Washington evoked the same fears of divided loyalties and private gain that would soon give rise to the Constitution’s emoluments ban. “Sundry base and wicked persons,” Washington called the merchants, “preferring their own, present private emolument to their country’s weal.”

This case may be delayed for a time on appeal, but eventually there will be discovery, and that means all of Trump’s personal and corporate tax returns, and other financial statements.

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