The Cork Wine Bar plaintiffs could, of course, add a claim under the emoluments clause, claiming government representatives pay for hotel rooms, meals and banquet facilities that are prohibited. “An emoluments clause complaint against the president in his official capacity would be fully consistent with the unfair competition claim they have now filed against Donald J. Trump in his capacity as a private businessman,” constitutional litigator Larry Tribe tells me. “And many of the allegations of unfairness stem from the same facts about domestic and especially foreign emoluments going to President Trump in violation of the Constitution.”
However, in this arena multiple cases taking different approaches may also prove productive. If one doesn’t make it to trial, another may. “Our case has a broader sweep, encompassing emoluments like the Chinese trademarks and any other foreign government benefits [that] may be hiding in Trump’s undisclosed tax returns,” Eisen says. “As we saw from the Muslim ban litigation, which unfolded in different ways and in different courts across the country, and as we have seen from other efforts over the years, it is healthy to have multiple approaches.”
In that vein, The Post recently reported that three groups (Fred Wertheimer, president of Democracy 21; bipartisan leaders of CREW; and Paul Smith of the Campaign Legal Center) sent a letter to the U.S. attorney for the Southern District of New York, which reads in part:
We call on you as the United States Attorney for the jurisdiction where The Trump Organization is located to exercise your responsibility to investigate and take appropriate action to ensure that the Trump Organization and related Trump business enterprises do not receive payments and financial benefits from foreign governments that benefit President Trump. . . .The letter notes that China recently granted Trump a trademark for building construction services. It also points out that tenants of Trump Tower in New York include a Chinese bank and the Abu Dhabi Tourism and Culture Authority, and that the Trump hotel in Washington has been courting business from foreign diplomats. The document notes that Trump’s business entities have plans to build luxury hotels in China, and that it is also engaged in real estate and licensing projects in India, Indonesia, the Philippines, Saudi Arabia, Scotland, Taiwan and Turkey.
In other words, either in one or more venues where claims have already been made or in cases yet to be filed, plaintiffs with “standing” (a cognizable injury) can put before a court issues such as the GSA lease, the Chinese trademarks and the opening of a new golf course in Dubai. (“The course’s opening comes after Donald Trump tried for years to enter the Arab market as a real estate mogul who later earned millions licensing his name to projects,” the Chicago Tribune reported. “The course’s opening now, as well as long-standing plans to open a second Trump-branded course in Dubai, could raise security and ethical issues for America’s 45th president going forward.”) Foreign Policy magazine pointed out other foreign ventures: “Eric Trump flew to Uruguay in January for a business trip that cost the taxpayers nearly $100,000 in security.” Because Trump refused to liquidate his holdings, any benefits from foreign government from any of these flow to him, and hence may run afoul of the constitutional clause prohibiting “members of the government from receiving gifts, emoluments, offices or titles from foreign states.”
For each of these transactions, Trump may be receiving something of value from a foreign government or a wholly owned company (such as a bank). So long as there are competitors and other aggrieved parties, the potential to have Trump’s conflicts adjudicated remains. Strangely, Congress is entirely inert and no Republican committee chairman has agreed to examine the range of possible issues. They remain, so long as they are in the majority, determined water-carriers for the president, a situation that likely will not end until one or both houses flips to Democratic control.