President Trump’s firing of James Comey raises a constitutional question as to whether the president can get away with dismissing an investigator into executive branch wrongdoing. Meanwhile, a more blatant and obvious constitutional confrontation is heating up.
New York hotel and restaurant owner Eric Goode today joined Citizens for Responsibility and Ethics in Washington (CREW)’s landmark emoluments lawsuit against President Donald Trump. Goode is an owner of the Maritime Hotel, the Bowery Hotel, the Ludlow Hotel and the Jane Hotel, as well as restaurants including the Park, Waverly Inn and Gemma.
Goode’s hotels and restaurants have attracted multiple foreign government clients and events, and have also hosted US government officials and state officials traveling on official business, thus paying with government funds. Goode’s hotels and restaurants compete with Trump’s hotels and restaurants for this business; business that Trump is prohibited from receiving by the Constitution’s emoluments clauses.
CREW, if you recall, sued Trump on the theory that the group had to devote resources to policing his alleged violations of the emoluments clause, to the detriment of its other ethics work. That raised the issue of “standing” — whether CREW has suffered a recognizable injury sufficient to create a legal case. Before Goode, CREW found other plaintiffs more directly harmed by Trump’s alleged violation of the prohibition on receiving monies from foreign governments. Restaurant Opportunities Centers (ROC) United, an organization of 25,000 restaurant workers and restaurants, and D.C.-based events booker Jill Phaneuf were first recruited to join the lawsuit. Now with Goode, CREW seems to have scaled the hurdle to prove “standing.”
The case may now turn on the meaning of “emoluments,” which is not defined in the Constitution. In December 2016, Laurence Tribe, Richard Painter and Norman Eisen wrote the equivalent of a legal brief on the issue as to whether otherwise normal commercial transactions would qualify:
As [the Office of Legal Counsel] OLC has concluded, and as the Oxford English Dictionary teaches, the word “emolument” is defined as “profit or gain arising from station, office, or employment: reward, remuneration, salary.” The word also has an older meaning of “advantage, benefit, comfort.” Around the time of Ratification, “emolument” was often used as a catch-all for many species of improper remuneration; thus, when James Madison criticized Alexander Hamilton, he warned that Hamilton sought to conduct government through “the pageantry of rank, the influence of money and emoluments, and the terror of military force.”
The Emoluments Clause is thus doubly broad. First it picks out words that, in the 1790s, were understood to encompass any conferral of a benefit or advantage, whether through money, objects, titles, offices, or economically valuable waivers or relaxations of otherwise applicable requirements. And then, over and above the breadth of its categories, it instructs that the Clause reaches any such transaction “of any kind whatever.” While the phrasing may strike us as peculiar, everything about the Emoluments Clause militates in favor of giving the broadest possible construction to the payments it encompasses. For that reason, the Clause unquestionably reaches any situation in which a federal officeholder receives money, items of value, or services from a foreign state.
Moreover, if we were to exclude commercial transactions from the definition of emoluments, we would open the door, as the authors say, to a ” ‘sweetheart deal’ or any other benefit inconsistent with a purely fair market exchange in an [arm’s]-length transaction not specially tailored to benefit the holder of an Office under the United States.” They argue that the rationale behind the Emoluments Clause would be undermined if, for example, “the President, while in office, owned a company that made tens of millions of dollars, all as a result of profitable transactions with the Chinese government. Could it be said in that scenario that there is little risk of improper foreign influence?”
This argument is even more convincing in practice as we see the degree to which questions are raised when Trump coddles dictators in countries in which he has holdings (e.g. Turkey, the Philippines) and enjoys benefits from governments that exercise exceptional discretion in awarding economic benefits (e.g. 38 trademarks in China).
The lawsuit will work its way through the courts. However, it is interesting that the Senate Intelligence Committee reportedly has sought information from the Treasury Department on Trump’s financial dealings. Sen. Mark Warner (Va.), the ranking Democrat on the committee, told CNN: “We’ve made a request, to FinCEN in the Treasury Department, to make sure, not just for example vis-a-vis the President, but just overall our effort to try to follow the intel no matter where it leads.” He explained: “You get materials that show if there have been, what level of financial ties between, I mean some of the stuff, some of the Trump-related officials, Trump campaign-related officials and other officials and where those dollars flow — not necessarily from Russia.” And, Sen. Warner, you can also see what, if any, monies may have flowed from foreign governments other than Russia into Trump’s pockets. That, after all, is the nub of the emoluments clause, and evidence of such transactions would confirm that the president is willfully violating the Constitution.