Three lawsuits challenging Trump’s violation of the emoluments clause — preventing him from taking foreign monies and domestic emoluments from states — are underway. As a district court recently found:
The Foreign Emoluments Clause was unquestionably adopted against a background of profound concern on the part of the Framers over possible foreign influence upon the President … The court is satisfied, consistent with the text and the original public meaning of the term “emolument,” that the historical record reflects that the Framers were acutely aware of and concerned about the potential for foreign or domestic influence of any sort over the President. An “emolument” within the meaning of the Emoluments Clauses was intended to reach beyond simple payment for services rendered by a federal official in his official capacity, which in effect would merely restate a prohibition against bribery. The term was intended to embrace and ban anything more than de minimis profit, gain, or advantage offered to a public official in his private capacity
as well, wholly apart from his official salary.
In case you doubted the wisdom of the framers’ effort to fend off foreign corruption, you need look no further than the revelation about Saudi money flowing into Trump’s coffers. The Post reported:
The general manager of the Trump International Hotel in Manhattan had a rare bit of good news to report to investors this spring: After two years of decline, revenue from room rentals went up 13 percent in the first three months of 2018.
What caused the uptick at President Trump’s flagship hotel in New York? One major factor: “a last-minute visit to New York by the Crown Prince of Saudi Arabia,” wrote general manager Prince A. Sanders in a May 15 letter, which was obtained by The Washington Post.
Neither Crown Prince Mohammed bin Salman nor members of the royal family stayed at Trump’s hotel, Sanders said: He said the Trump hotel didn’t have suites big enough to accommodate them. But “due to our close industry relationships,” he wrote, “we were able to accommodate many of the accompanying travelers.”
The previously unreported letter — describing a five-day stay in March that was enough to boost the hotel’s revenue for the entire quarter — shows how little is known about the business that the president’s company does with foreign officials.
Just as Maryland’s and D.C.’s attorneys general are pursuing the emoluments claims regarding the Trump International Hotel in D.C., the New York Attorney General Barbara Underwood said she too was investigating a possible emoluments claim for New York properties. (An AG spokesperson announced: “We’re continuing to investigate. This office has repeatedly and successfully acted to hold Donald Trump accountable for unlawful and unconstitutional actions, and we will continue to do so.”)
Norman Eisen, co-counsel in a case brought in the Southern District of New York by private litigants and Citizens for Responsibility and Ethics in Washington, told me that the Saudi money discovery “demonstrates that Trump’s New York properties at issue in our pending appeal in the Second Circuit deserve the same scrutiny as the Trump International Hotel that is at issue in the Maryland and D.C. case.” He added, “We believe that we will prevail on the New York appeal so that the courts can review outrageous instances like this Saudi example.”
The reason we do not know much of anything regarding Trump’s receipt of foreign monies is because, unlike other modern presidents, Trump has refused to release his tax returns and the GOP House has refused to assume its constitutional power to determine whether the president can accept foreign emoluments. Right now litigation is trying to remedy this likely constitutional violation. However, after the midterms, a Democratic House on a simple up-or-down vote could determine that no, the president cannot accept any foreign emoluments from the Saudis or anyone else.
You see, the emoluments clause requires affirmative permission from Congress; by explicitly denying him that permission, Congress would put Trump squarely in violation of the Constitution. In other words, it would be telling Trump, “Your emoluments or your presidency.” And if Trump refuses to give up his emoluments while remaining president? Impeachment would be a remedy for a willful violation of the Constitution, but Congress might also obtain a court order (if it could survive standing issues and a host of other legal hurdles). Foreign funds, for example, might be impounded by court order at his properties. Like Iran sanctions, U.S. banks could be ordered to stop receipt of any overseas money from Trump properties.
In sum, Trump never thought he’d win the presidency and has had no intention of giving up any income. To the contrary, he’s using the presidency to hawk his properties and, in the case of Mar-a-Lago, ratchet up the price of membership and charge the Secret Service and other officials for their accommodations. Trump’s level of greed and indifference to legal and ethical norms is unsurpassed by any president. A Democratic House, however, might go a long way toward ending the grotesque corruption that characterizes his administration.