Mere days after President Donald Trump took office, the watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, filed a suit alleging that the president is violating the Constitution’s Foreign Emoluments Clause, which bars elected officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” by holding onto his businesses while in office. Last week, the Department of Justice responded with a motion to dismiss CREW’s case, arguing in part that there is insufficient evidence that the organization has been directly harmed by Trump’s alleged wrongdoing. (CREW is expected to respond to the DOJ’s motion soon, although one could argue they already have on Twitter.)
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Though the main facts of the case are technically unprecedented—no sitting U.S. president has been sued over the Foreign Emoluments Clause—the DOJ’s argument wasn’t exactly surprising. As I wrote in March, legal experts felt CREW’s lack of evidence that it had been harmed was the case’s biggest flaw: The organization’s claim that the obligation to identify and investigate Trump’s conflicts of interest diverts money and attention away from other worthy causes is likely too weak for the case to proceed in court.
Hardly had the DOJ’s motion been filed before the Trump administration faced new emoluments-related legal actions: On Monday morning, Brian Frosh and Karl Racine, the attorneys general of Maryland and Washington, D.C., respectively, filed a lawsuit against the president (with CREW serving as outside counsel), similarly alleging that his decision not to sell his businesses violates the Constitution. Then, on Wednesday, almost 200 Democratic senators and representatives announced that they, too, would be suing the president. And because these suits come from members of the government rather than from private citizens, the plaintiffs likely won’t have to establish the sort of direct harm that CREW needs—and that could make all the difference.
Both of these cases are on firmer ground, at least with regard to the question of legal standing. When it comes to states, there are two ways that Frosh and Racine could theoretically establish standing, says Jed Shugerman, a professor of law at Fordham University. The first, which Shugerman put forth on his website in March, runs through state courts: “Every state has a statute that gives the state attorney general the right to supervise corporate practices and to sue to dissolve a corporation if it engages in enough unlawful conduct,” he says, “because corporations are a creature of state law.” That means that the attorney general of any state where Trump has a business—in his blog post, Shugerman specifically points to New York, where the Trump Organization is based—could sue over unconstitutional, and therefore illegal, emoluments.
Frosh and Racine, who filed their suit at the federal level, aren’t following this exact path. Instead, their case rests on the principle that states have special standing to take on the federal government in court. “States represent a constitutionally vital institution,” says Shugerman. “If they can’t get into federal courts to protect their interests, then the federal courts aren’t doing their job.”
That special standing has distinct ramifications when it comes to the Emoluments Clauses—not only the Foreign one that CREW is contesting but also the Domestic Emoluments Clause, which holds that, aside from his official salary, the president “shall not receive … any other Emolument from the United States, or any of them” while in office. According to Shugerman, the country’s founders “worried rich states could wield more influence by paying presidents directly. To avoid even the appearance of improper influence, they created a blanket rule: No emoluments from the states.”
Meanwhile, for the congressional Democrats’ legal action, precedent for suing the president can be found as recently as 2014, when the House—then as now under Republican control—sued the Obama administration over the Affordable Care Act, alleging that the president exceeded his constitutional authority in delaying implementation of the law’s employer mandate. In the ensuing case, House of Representatives v. Burwell, a federal judge determined that, because the Constitution establishes that only Congress has the power to tax and spend, the House did have standing to sue the president. (The case was not resolved under Obama; given the current administration’s stances on the Affordable Care Act, it is unclear how it will proceed from here.) Similarly, the Democrats assert in their suit that, because the Foreign Emoluments Clause requires that the president obtain the consent of Congress for any foreign payments he receives, they have not only the standing but the responsibility to take legal action against Trump.
According to the DOJ, however, it’s possible that nobody has standing to sue over the president’s conflicts of interest. Because the Foreign Emoluments Clause only prohibits payments made “without the Consent of Congress,” the DOJ argues, the courts are the wrong venue to contest the issue. According to Shugerman, that argument misreads the “political-question doctrine,” which holds that certain problems are best left to political processes, such as impeachment and elections, rather than legal ones. “Just because Congress has the power to give more detail over a constitutional duty, it doesn’t mean that constitutional duty is unenforceable by courts,” he says. “It’s not like the constitutional text says, ‘It is only up to Congress to decide the scope of the Foreign Emoluments Clause.’” By suing the president, CREW, congressional Democrats, and Frosh and Racine seem to side with Shugerman on the political-question doctrine, although the lack of precedent means it remains unclear what the courts will decide.
That so much of the discussion of these cases has so far centered on the question of standing demonstrates one of the unique wrinkles in the ongoing debate over the Emoluments Clauses. For all of the conflicts of interest the Trump Organization creates, there isn’t definitive proof that the president’s businesses are directly impacting his decisions—and, unless Trump does something provably corrupt, there likely won’t be.
That’s not to say that there’s no evidence the president will take his business holdings into account while in office. Indeed, one could argue there’s reason to believe that he already has. He received long-awaited approval for trademarks in China right around the time he recommitted the U.S. to the One China Policy, he’s been remarkably deferential to autocrats from countries where he owns property, and he’s repeatedly talked business with foreign leaders around the world. He also approved a massive arms deal with Saudi Arabia and sided with the country in its dispute with Qatar shortly after the Saudi government spent almost $ 300,000 at his hotel in Washington, D.C. And psychological research certainly suggests that he, just like anyone else, will at some point be influenced by financial incentives, even if the payoff is minuscule compared to his fortune.
But all of that evidence is speculative, circumstantial, or both; it would almost certainly not hold up were one trying to demonstrate bribery, extortion, or another specific crime in court. Each of those decisions has an alternate explanation, even if those explanations are troubling in their own ways: Perhaps he’s embraced China and Saudi Arabia because their leaders flattered him; perhaps he likes autocrats in Turkey and the Philippines because he wishes he had their unchecked power; and perhaps he talks business with world leaders because it’s a comfortable, easy conversation topic for him in daunting situations. To truly demonstrate the intent behind any or all of these behaviors would require far more insight into Trump’s psyche than even his most stream-of-consciousness tweets provide.
According to the Department of Justice’s motion to dismiss—which, while technically filed only against CREW’s lawsuit, provides a useful guide to what the government may argue in the future—the lack of a direct causal relationship means payments to the Trump Organization aren’t emoluments at all. Trump’s defenders, the DOJ included, have pointed to historical examples, including land sales made by George Washington while president, Ronald Reagan’s pension from his time as governor of California, and payments Obama received while in office from Treasury Bonds, to argue that the Constitution only bars payments made directly for services rendered as president and not payments at market prices, like those made at Trump’s hotels.
This reasoning, says Shugerman, is “incredibly weak—and when I use the word incredible, I mean it has no credibility.” First, he argues, “there’s a big difference between Reagan and Obama receiving payments that were available to everyone else at the same rates and vested before they entered the office of the presidency” and Trump’s situation, in which “it’s impossible to figure out what was a benefit because of the president’s influence versus a benefit that would have come in anyway.” As for George Washington, Shugerman points out that the historical record shows little in the way of contemporaneous discussion of the topic—not because emoluments weren’t seen as an issue, but because Washington appears to have kept it a secret. Besides, just as John Adams’s support for the anti-free-speech Sedition act didn’t take the First Amendment off the books, Washington’s apparent violation of the Emoluments Clauses doesn’t render the rule moot for all time.
In fact, Shugerman argues, the very payments that Trump’s defenders insist are exculpatory evidence demonstrate the necessity of enforcing the Emoluments Clauses. The precise point, he says, is to lay out inviolable rules to head off even the possibility of corruption: “The founders did not have balancing language about intent or purpose or bribery. They laid out a bright-line rule: no foreign emoluments ‘of any kind whatever,’ and no domestic emoluments.” In his view, neither Reagan nor Obama should have been allowed to accept the payments that they did while in office (nor, he says, should Hillary Clinton have been allowed to maintain her relationship to the Clinton Foundation while she was Secretary of State).
At a press conference announcing the lawsuit on Monday, Frosh and Racine similarly asserted that whether the president demonstrably acts a certain way after receiving specific emoluments is immaterial to their case. The mere fact that Trump has chosen to maintain a business that has properties in numerous states (and that is looking to expand soon into more), they say, creates an “intolerable dilemma” in which those states must consider how their dealings with the Trump Organization may please or anger president. Meanwhile, they argue, as long as it is possible for a foreign government to attempt to curry favor with Trump through his businesses, citizens (and ethics watchdogs) will have reason to worry that his foreign policy will be dictated by financial considerations rather than the best interests of the country.
More broadly, Frosh and Racine’s case is another demonstration of how, with both houses of Congress in Republican control and therefore unlikely to serve as a check against Trump, states and courts have arguably become his biggest source of substantive opposition. The first, and clearest, manifestation of this so far has been the resounding rejection of Trump’s executive order banning travel to the U.S. from seven majority-Muslim countries: Numerous states quickly filed suits contesting the order, which multiple courts have now deemed unconstitutional. Now, those who hope to hold the president to account over his conflicts of interest are similarly looking to the combined powers of federalism and the judiciary to oppose a behavior they consider damaging to the country.