Have you filed an emoluments lawsuit against Donald Trump yet? If not, you better act fast—the docket is getting crowded. The attorneys general of D.C. and Maryland filed a suit on Monday alleging that the president’s receipt of foreign gifts and payments violated the Constitution. Two days later, nearly 200 members of Congress also sued Trump for the same purportedly unconstitutional conduct. Trump’s attorneys at the Department of Justice, meanwhile, are busy fighting another emoluments lawsuit, this one filed back in January on behalf of an ethics watchdog and Trump’s business competitors.
Do any of these lawsuits have a real chance of success? And what would success even look like in this deeply ambiguous and heretofore uncharted area of constitutional law?
The very first emoluments suit is beginning to provide an answer to those questions. Spearheaded by Citizens for Responsibility and Ethics in Washington, this lawsuit elevated the emoluments problem from academic blogs to front-page headlines. The Constitution’s Foreign Emoluments Clause declares that “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.” CREW reads this clause very broadly, arguing that it bars the president from receiving any payment from a foreign government.
CREW hopes to obtain a court order compelling Trump to divest from his business empire, which continues to receive cash from foreign, state-owned corporations. Its secondary goal is much more modest: The group wants to get to discovery, allowing it to demand financial records from Trump and his business empire—including the president’s tax returns. To get to that point, however, CREW must prove it is an injured party and thus has standing to sue in court. CREW alleges that Trump injured the group by forcing it to divert valuable resources to an investigation into his ethics violations. This theory of standing was clearly a long shot. So, in March, CREW brought a restaurant association and a luxury hotel booker into its suit; both claim Trump’s emoluments violations are causing them to lose business, a more solid ground for standing.
Even if CREW can’t get past this threshold, it has already scored one political victory: The lawsuit forced the Justice Department to defend Trump’s acquisition of wealth. In its lengthy brief, the DOJ argued that the Foreign Emoluments Clause applies only to “benefits arising from services the president provides to the foreign state.” Under the DOJ’s theory, Trump won’t run afoul of the Constitution unless he receives payment from a foreign government for engaging in some official act.
This cramped interpretation is designed to ensure that “private commercial transactions” fall outside the clause’s scope. To bolster that proposition, the brief embarked upon a comically tone-deaf tour of presidential profiteering through the ages. We learned that, during their presidencies, George Washington owned a gristmill; Thomas Jefferson, a nail factory; James Madison and James Monroe, tobacco plantations. According to the DOJ, these enterprises are constitutionally analogous to Trump’s empire which, to give just one of many examples, allows the president to receive millions of dollars from a state-controlled Chinese bank.
The DOJ’s thesis is probably wrong; a wealth of historical evidence suggests the Framers viewed an “emolument” as any good or service of value, not one specific kind of bribery. But even if Trump’s lawyers are right, their brief is still politically deleterious. The DOJ is now defending the chief executive’s constitutional right to rake in as much money as he can from foreign states, so long as the exchange doesn’t involve a demonstrable quid pro quo. Trump and his lawyers are defining corruption downward. First, we were told the president would separate himself from his businesses. Now we have learned that he won’t, but he promises not to take any outright bribes. As far as presidential ethics go, only Richard Nixon set a lower bar.
Should a federal judge toss out CREW’s suit, Trump’s opponents will have at least two more bites at the apple. The Washington and Maryland suit is especially interesting, since both jurisdictions have a strong case for standing. Maryland argues that Trump’s D.C. hotel is drawing foreign business out of the state, reducing its tax revenue; the District of Columbia alleges the hotel is drawing business away from its convention center, which is taxpayer-owned. The congressional lawsuit, on the other hand, asserts Trump is injuring members of Congress by depriving them of the opportunity to vote on his emoluments. Because the Constitution allows the president to receive emoluments with “the consent of the Congress,” these representatives argue they must be able to allow or prohibit Trump’s acceptance of foreign payments.
That theory is certainly creative, although law professor and emoluments expert Andy Grewal doubts it will succeed since Congress could vote on Trump’s emoluments and has simply chosen not to. Either way, both suits will force the Justice Department to continue defending Trump’s profiteering. If one makes it past the standing stage, the plaintiffs will enter the promised land of discovery (and tax returns). The emoluments litigation has already put Trump on the defensive and forced his lawyers to justify presidential enrichment; it now poses a real threat of unveiling his secretive business dealings as well. What started as a single long-shot lawsuit may soon turn into a nightmare for the president.