In the more than two hundred and thirty years since the Constitution was ratified, no lawsuit had attempted to enforce its anti-corruption provisions—until the Presidency of Donald Trump. Two previously obscure provisions of the Constitution, known as the emoluments clauses, aim to prevent public officials from being improperly beholden to foreign and domestic governments. One, the foreign-emoluments clause, requires a person holding a federal “office of profit or trust” to get Congress’s consent before accepting any “emolument”—an advantage, gain, or profit—from a “foreign state.” The other, the domestic-emoluments clause, prohibits the President in particular from receiving any “emolument” from the federal government or from a state, other than the preset standard salary for the job of President. Previous Presidents did not present the need for courts to interpret these clauses’ meaning. And, for the same reason that Trump is so different from other Presidents—his brazen disregard of legal norms—several lawsuits claiming that he is violating the emoluments clauses may end up forcing the unfortunate recognition that the Constitution’s anti-corruption measures are ineffectual when most needed.
Trump’s impeachment, last year, for abuse of power, was triggered by a phone call in which he told Ukraine’s President, Volodymyr Zelensky, that he would release U.S. aid to Ukraine, but that Zelensky should “do us a favor, though,” and investigate the son of his political opponent Joe Biden for corruption. Recall that Zelensky’s part of that phone call consisted of attempts to ingratiate himself with the American President, including with the statement, “Actually, last time I travelled to the United States . . . I stayed at the Trump Tower.” In the same vein, shortly after Trump’s election, in 2016, an unnamed Asian diplomat told the Washington Post, “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’ ” A Middle Eastern diplomat said, “Believe me, all delegations will go there.” So, indeed, since November, 2016, numerous foreign governments, American states, federal officials, and members of Congress have chosen to patronize Trump properties instead of other venues for events and hotel stays. Trump stepped back from management of his business when he became President but did not divest himself of ownership, despite ethics experts’ calls for him to do so. That means money spent at his properties benefits him personally, and creates, at the very least, the appearance of influencing his official treatment of those who enrich him and those who don’t.
Trump has not managed to disabuse the public of suspicions that his financial interests sway his outlook on the national interest. He began his Presidency with the inauspicious statement that “the President can’t have a conflict of interest.” He and White House staff have since made many public statements boosting his hotels. Trump once said, about Saudi Arabia, “They spend forty million dollars, fifty million dollars. Am I supposed to dislike them? I like them very much.” Speaking of a U.S. dispute with China over the South China Sea, he said, “I do deals with them all the time. The largest bank in the world, four hundred million customers”—the Industrial and Commercial Bank of China—“is a tenant of mine.” Apparent examples of favorable treatment of those he does business with abound. Middle Eastern countries where Trump has significant commercial interests, including Saudi Arabia, Egypt, the United Arab Emirates, Lebanon, and Turkey, were conspicuously not on the list of majority-Muslim countries targeted in Trump’s so-called Muslim ban, in 2017. And Trump’s abrupt announcement, in October, 2019, that American forces would move aside in northern Syria—thereby enabling an offensive in the region by the Turkish military—raised eyebrows in light of a lucrative Trump Towers licensing deal in Istanbul.
Since 2017, several lawsuits against Trump claiming that the President’s financial gains from foreign or domestic states’ patronage of his hotels violate the emoluments clauses have been making their way through the courts. The main question the courts have clashed over in these cases is who, if anyone, should be permitted to press such a constitutional case against the President. Federal courts allow only plaintiffs who suffer real injuries to sue, in order to insure that the judges keep to the constitutional requirement that they hear only “cases” or “controversies” (rather than legislative or executive matters). Here that means that a suit can only be brought by a plaintiff who is harmed concretely by President Trump’s constitutional violations in a way that a court could redress. One case, brought by two hundred and fifteen Democratic members of the House and the Senate, claimed their right, under the foreign-emoluments clause, to vote to give or refuse consent for Trump’s receipt of foreign states’ money. The D.C. Circuit, overruling a district court, dismissed the case, holding that even hundreds of members of Congress together cannot sue to assert the interest of Congress as a whole. Another lawsuit, brought by New York hotel and restaurant owners, claims that, as Trump’s direct business competitors, they are harmed by his emoluments violations, because foreign and domestic governments opt to go to Trump’s establishments instead of theirs in hopes of enjoying official favor. A Second Circuit panel, overruling a district court, is allowing that case to proceed for now, though the decision could still be reversed by the full court.
Finally, a case in which the District of Columbia and the State of Maryland are suing Trump for emoluments violations appears poised to be taken up by the Supreme Court for hearing next term. D.C. and Maryland claim that they are harmed by the violations because, if the Trump Organization requested exemptions from environmental, zoning, and other regulations, they might face the President’s disfavor if they denied the requests. And, like the New York restaurateurs and hoteliers, D.C. and Maryland claim that they and their citizens are harmed as competitors to Trump’s businesses, especially the Trump International Hotel in Washington, D.C. After a district court refused to dismiss the case, a Fourth Circuit panel ordered the case dismissed, because it was unconvinced that the plaintiffs’ injury was real or redressable by a court. But, in May, the full Fourth Circuit enabled the case to proceed, holding that the district court’s refusal to dismiss it wasn’t a “clear abuse of discretion,” and that Trump’s right to dismissal of the case wasn’t “clear and indisputable.”
The emoluments clauses encompass concerns about bribery or quid-pro-quo exchanges that are also prohibited by criminal statutes, but the Framers were more concerned about a President’s vulnerability to subtler inducements. The foreign-emoluments clause was inspired by their desire to guard against what they saw as a corrupt European custom of gift-giving. An early event that fuelled its inclusion in the Constitution was the Founding Father Benjamin Franklin’s receipt, in 1785, as Ambassador to France, of a gift from King Louis XVI—a gold snuff box bearing the King’s portrait and studded with more than four hundred diamonds. Amid whispers of scandal, Franklin asked Congress whether he could keep the gift, and Congress agreed. He then left the snuff box to his daughter, and asked that she not remove the diamonds to use for jewelry, but over the generations his descendants sold off nearly all of them.
Presidents have since tangled with emoluments in various forms, but they have been able to satisfy the public without being taken to court. President Abraham Lincoln disclosed to Congress gifts of elephant tusks and a sword from the King of Siam, and Congress directed him to place them with the Interior Department. Congress permitted President Martin Van Buren to sell gifts from the Imam of Muscat and deposit the proceeds in the Treasury. Congress allowed President Benjamin Harrison to receive medals gifted by Brazil and Spain. But Congress refused permission for President Andrew Jackson to keep a gold medal received from the Venezuelan leader Simón Bolívar. President Barack Obama sought the opinion of the Justice Department’s Office of Legal Counsel (O.L.C.) on his $1.4 million award for the Nobel Prize; because the Nobel Committee was not a “foreign state,” he could accept it without the need to ask Congress. (Obama ultimately donated the funds to charity.) Likewise, when President Ronald Reagan asked the O.L.C. about receiving his retirement benefits from California, which were fully vested prior to his becoming President, the O.L.C. determined that those were not “emoluments” because they were “neither gifts nor compensation for services” that could subject him to improper influence.
Trump has argued in his emoluments cases that an “emolument” does not include payments that he gains at fair market value for services, namely rentals of hotel rooms or event spaces. He has even claimed that the clauses only prohibit payment for employment (say, if an American President were actually in the paid employ of Russia or Texas). But the Maryland federal district court in Trump’s case rejected Trump’s view, reasoning that the Founders’ generation understood “emolument” broadly, so that it would encompass his commercial transactions—particularly where profits arise precisely from various governments’ efforts to curry favor with the President.
As usual, Trump is also making sweeping claims of his immunity, in keeping with other cases that he is currently litigating, on the separation of powers. He claims that he is “absolutely immune” from any individual liability based on his conduct in the Presidency, and that his choices regarding emoluments fall “within the outer perimeter of the President’s official responsibilities” and cannot be second-guessed by courts as a matter of separation of powers. In a dissenting opinion in the case brought by D.C. and Maryland, the Fourth Circuit’s five conservative dissenting judges spelled out their view that no court can order the President to comply with the emoluments clauses, regardless of whether he is in violation of them or who the plaintiff is. To do so, they said, would be inconsistent with “the integrity of the separation of powers,” which “depends on no branch being able to commandeer another.” To “control” the President, they reasoned, “is to control the executive branch itself.” The opinion stems from the dissenters’ strong belief that it is only up to the President and Congress, and not judges, to interpret the meaning of the emoluments clauses. The nine judges in the majority of the Fourth Circuit, though, hewed to the more standard “judicial supremacy” view: that authority to interpret what the Constitution means rests with the judiciary, not with the other branches—particularly because it makes little sense for the President to have unreviewable power to define the meaning of constitutional provisions meant to restrain him. (The dissenters shot back that, even without judicial enforcement, Congress could enforce the emoluments clauses, by passing laws requiring a President’s financial disclosures, for example—or, of course, by impeaching him.)
The conservative judges appeared to believe that by not stopping the emoluments lawsuit, which they called a “litigative assault,” the court was doing grave damage to the judiciary itself. The dissent charged the majority with casting “aside the inspired design of our constitutional order in exchange for the ephemeral rush of a judicial power unbound,” making judges “partisan warriors in contradiction to the rule of law that is and should be our first devotion.” Alleging lawlessness and “exceptional hubris,” the conservative dissenters denounced their colleagues’ willingness to “indulge this lawsuit” as “a missed opportunity to transcend the political moment,” and waxed pseudo-Shakespearean: “Can we not see the political cloak we are asked to don?” In response, the majority returned fire, feeling disparaged as “political hacks” and in turn accusing the dissenters of abandoning “judicial temperament and restraint by commandeering this case as a vehicle to question the good faith of judges.” “Readers may compare our measured approach with the dramatics of the dissent and draw their own conclusions,” the majority wrote. Ultimately, despite the judicial motivation to safeguard the public trust, neither side managed to avoid the “political scrum” in vituperating that the other was being partisan and immodest. The tonal extremity of the judges’ fusillade was a revealing symptom of what the dissent called “this most rancorous of times,” as “partisan fevers grip the national government.”
Perhaps this is fitting, because these emoluments lawsuits, begun in the first year of Trump’s Presidency, have a very real possibility of being overtaken by political events and going without judicial resolution. The Administration has said that it will seek review of the Fourth Circuit’s decision in the Supreme Court, and to do so it must file a cert petition by mid-August. Even if the Supreme Court were to grant cert immediately upon receiving the petition, it would be impossible both to hear the case on one of the few oral-argument dates scheduled before November and to issue a decision on it before the Presidential election. If Trump is not reëlected in November, the competitive-business injury from his emoluments violations that the plaintiffs allege, which is essential to their standing to sue, will quickly dissipate. And, to the extent that the plaintiffs are seeking a court order forcing Trump to divest from his majority stake in his hotels, that remedy will no longer be appropriate if his Presidency is set to end imminently. The emoluments lawsuits would then likely be dismissed as moot.
Then again, Trump could win reëlection in November, in which case the Supreme Court will likely proceed to weigh in. However, then it may well feel Sisyphean to carry on with the suits. Congress will have acquiesced in the emoluments violation for more than four years by not legislating to curb it or impeaching the President (again) for the “abuse or violation of some public trust,” as Alexander Hamilton put it in Federalist No. 65, on the purpose of impeachment. And the American public will apparently have looked corruption in the face and decided that, in Presidential politics, other concerns are more important.
