Has there ever been another president in U.S. history who openly placed his own interests above those of the country as brazenly and unabashedly as Donald Trump does? Probably not, but right now, there are increasing signs that President Trump’s ability to skirt accountability in this regard is cracking.
You can see this happening in two big stories of the moment: a new judicial ruling allowing a lawsuit alleging Trump is serially violating the Constitution’s emoluments clause to proceed, and former Trump lawyer Michael Cohen’s willingness to spill on Trump, deepening his legal travails.
Thanks to the first of these, we now have a real chance at getting a fuller picture of Trump’s self-dealing when it comes to taking money from foreign governments. A U.S. district court judge has now ruled that discovery can proceed in a lawsuit that the attorneys general of Maryland and the District have filed against Trump. The president had tried to stall the lawsuit, but failed.
This discovery process will now entail an effort to peer into the finances of the Trump International Hotel in D.C., which has become a magnet for spending by foreign governments and dignitaries. The lawsuit alleges that by profiting in this way, Trump — who declined to divest himself of his business holdings as president — is violating the emoluments clause, which bars federal officials from taking such benefits from foreign (or state) governments unless Congress okays it.
In an interview, Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington — which is assisting with the lawsuit — noted that as part of this discovery process, the attorneys general suing Trump would probably try to nail down what this spending looks like.
“They’ll be looking for records that will show as clearly as possible what money is coming into the president’s businesses, primarily his hotel in Washington, from foreign governments,” Bookbinder told me. He added that the goal would be to “establish as clearly as possible what emoluments are coming in.” Their specific discovery demand could be coming as early as Tuesday afternoon.
To grasp the real significance of this, we need to look at why the court has allowed this lawsuit to move forward. In July, the court denied Trump’s motion to dismiss the suit. Trump had tried to define “emoluments” very narrowly. But the judge instead accepted the plaintiffs’ argument that they constitute “profit,” “gain” or “advantage,” i.e., the sort of profits that go to Trump’s businesses.
Importantly, in so doing, that ruling affirmed the idea that the goal of the constitutional ban on emoluments is to remove any doubt that a federal official is letting his private profiteering influence his decision-making on behalf of the public. The framers “made it simple,” the ruling said. “Ban the offerings altogether.”
Trump’s blending of public and private interests
We don’t have a full picture of what Trump’s profiteering looks like, and we don’t know whether his decisions are being influenced by that profiteering. But the point is that Trump essentially showed contempt for the very idea that he should divest from his private businesses precisely in order to give the public confidence that this is not happening.
In this sense, this case goes directly to the core of Trump’s blending of private and public interests, which this presidency has taken to an extraordinary degree. For instance, we have no clear idea of just how much money his family made off the corporate tax cuts he signed. Meanwhile, in recent days, questions have mounted on other fronts. We cannot dismiss the possibility that Trump’s refusal to hold the Saudi crown prince responsible for the murder of journalist Jamal Khashoggi is related to his financial entanglements with the Saudis, something that Democrats will separately be investigating.
It is hardly certain, of course, that this lawsuit will bear fruit. Trump could successfully block it in a higher court, and if it does make it to the Supreme Court, it’s anybody’s guess what will happen. Alternatively, Trump might try to prevent whatever discovery does yield from being made public.
But the bottom line is that this lawsuit, which originally seemed like a long shot, is proceeding. The basic aim of it is to demonstrate convincingly that Trump actually is accepting emoluments, which would confirm the lawsuit’s underlying charge that Trump is violating the Constitution. We don’t know what would happen at that point — the court might order Trump to stop, and Trump might or might not obey that order — but in this scenario, Trump’s self-dealing will have been revealed to a greater degree, perhaps giving the Democratic House more grist for investigations.
Cracks on other fronts
Speaking of Trump’s finances, now that Democrats have taken back the House, they will mount a renewed push to get his tax returns. The president continues to conceal them, again showing total unconcern for the idea that the public might want transparency precisely in order to have confidence that he is acting entirely in the national interest, as opposed to in his own.
Now let’s talk about Cohen. The president’s personal fixer revealed extraordinary new dimensions of Trump’s self-dealing when he confessed to lying to Congress to conceal the fact that the Trump Organization’s negotiations over a Trump Tower Moscow continued well past Trump wrapped up the GOP nomination.
But this might be only the beginning. According to Cohen’s lawyers, Cohen has sat for seven voluntary interviews with special counsel Robert S. Mueller III’s team, and we have no idea how much he might have told them. Michael Isikoff reports that a sentencing memo on Cohen is expected Friday, which is “expected to yield significant new details” on the “cooperation” he has “provided to the Russia investigation.”
Meanwhile, in this context, it’s worth looking back at Trump’s response to Cohen’s admissions. Trump blithely conceded that he pursued the Moscow project, and said there was nothing wrong with it:
“I was running my business while I was campaigning,” Trump told reporters Thursday. “There was a good chance that I wouldn’t have won, in which case I would have gone back into the business and why should I lose lots of opportunities?”
For Trump, it’s simply not part of the equation that American voters might have been entitled to know that he was pursuing a lucrative real estate deal that required Kremlin approval, even as he campaigned on a promise to pursue better relations with Russia — and even as he publicly absolved Russia of the direct assault it was waging on our democracy on his behalf. Of course, Trump was aware that revealing this would be bad for him, so he lied to keep it concealed.
But steady, insistent inquiry by news organizations and law enforcement — and, now, via the advancing of the emoluments lawsuit — is cracking the fortress. And the cracks are only likely to widen.