Because the Foreign Emoluments Clause requires the President to obtain “the Consent of the Congress” before accepting otherwise prohibited “Emolument[s],” Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds their “Consent” before the President accepts any such “Emolument.”
The lawmakers ask the court to provide declaratory relief that Trump is in violation of the Constitution “when he accepts any monetary or nonmonetary benefit — any ‘present, Emolument, Office, or Title, of any kind whatever’ — from a foreign state without first obtaining ‘the Consent of the Congress.’ ” They also seek an injunction to stop Trump from receiving any future benefits from a foreign government without first getting Congress’s consent. (Interestingly, the lawmakers do not go so far as to seek that Trump disgorge emoluments illegally received to date.)
The lawmakers claim “standing,” the right to bring suit, because the Constitution specifically allocates them the power to approve emoluments and without court intervention they have no mechanism to force the president to do so. They observe that they do not even know what he owns, so they cannot “exercise their constitutional prerogative to authorize or reject the specific emoluments he is accepting.”
The provision that Congress must consent to emoluments distinguishes this suit from the other two. Trump often complains that it is not fair for him to give up his businesses. The Constitution does not require him to — but it does require him to seek consent. Trump’s refusal to provide transparency goes to the heart of the problem the emoluments clause was seeking to address — secret conflicts and hidden interests that could influence the president. In refusing even to seek consent, Trump is snubbing his nose at Congress and the clear text of the Constitution.
The suit rejects the argument that emoluments as defined in the Constitution do not include monies received for fair-market value for goods or services:
Notably, the word “emolument” was defined broadly in the eighteenth century to mean “profit,” “advantage,” “benefit,” and “comfort.” Contemporary writers used the term to refer, among other things, to profits accruing from private commerce. Founding-era statesmen including George Washington and James Madison likewise used the term when referring to “the consequences of ordinary business dealings.” And Governor Randolph’s comments at the Virginia Ratifying Convention, specifically addressing the Foreign Emoluments Clause, reflected this broad definition as well.
The lawsuit, in essence, seeks to enforce the anti-corruption purpose of the Founders. The suit alleges that “because Defendant is not coming to Congress and identifying the emoluments he wishes to accept, the American people will have no way of knowing whether his actions as President reflect only his beliefs about what is best for the country, or whether they are partly motivated by personal financial considerations.”
Rep. Jerrold Nadler (D-N.Y.), one of the architects of the legal attack, tells me that as soon as Trump announced he would not fully divest himself, Nadler and his staff knew Trump would be “a walking violation of the Emoluments Clause.” While other lawsuits proceed, he says, “It’s Congress’s job specifically to vote on [emoluments].” As for the defense that the Constitution does not apply to fair-market-value transactions, he concedes, “It’s an argument. It’s wrong. But it’s an argument.” Given how little litigation has taken place on this, it becomes a true case of first impression for the courts.
Ironically, Republicans could very well offer that approval, but of course they want no part in forcing Trump to disclose what he owns, a sad commentary on their failure to uphold their constitutional obligations. Nadler says, “I do hope Republicans join the lawsuit. We have institutional responsibility as members of Congress.” As we have noted, “constitutional conservatives” display gross hypocrisy in choosing to ignore some of the most unequivocal language in the Constitution. They might find it noteworthy that the clause appears in Article I — setting forth the powers of Congress — not in Article II, which delineates the president’s requirements and powers.
Nadler knows that the special counsel looking into the Trump campaign’s Russia connections might seek some of the same financial material (e.g. tax returns, business records) to determine whether financial crimes have taken place. That does not mean the two efforts (four efforts, if you include the two other emoluments lawsuits) cannot proceed down parallel tracks. Indeed, Sen. Richard Blumenthal (D-Conn.), a key player in the lawsuit, tells me, “Sunlight is the best disinfectant.” He observes that with transparency the potential for financial criminal activity is reduced.
Legal scholars say that the emoluments clause is not a trivial matter and serves separate purposes from any criminal investigation. Fordham law professor Jed Shugerman explains, “It is the Foreign Emoluments clause’s reliance on disclosure that makes these suits constitutionally vital for discovery and disclosure. These criminal [the special prosecutor’s actions] and constitutional interests overlap.” He continues, “The Framers were very concerned with foreign states buying influence, and that concern is even greater when those payments are criminal, like laundering and bribery, because it opens the door to foreign entities extorting and blackmailing for even more influence. The crimes turn the carrot of payments into a stick of blackmail.” He concludes, “Both the emoluments suits and [Robert S.] Mueller [III] need to investigate the financial carrots and, if criminal, their accompanying blackmail sticks.”
Blumenthal tells me he is reaching out to discuss the lawsuit with colleagues. “I think many of them are concerned about the precedent,” he says. Whether it is fear of Trump or lack of focus on the constitutional mechanism, he stresses that “the Founders gave this power to Congress.” He recalls that the consent of Congress for emoluments was not in the Articles of Confederation. He thinks it’s critical to reaffirm the checks and balances. “We have the right to bring the lawsuit; we have the right to transparency because the Constitution gives us this power,” he observes.
If the lawsuit survives a motion to dismiss, the lawmakers would seek vast discovery as they attempt to find out what the president owns and what he receives from foreign governments. In an eye-popping admission, the counsel for Trump’s business acknowledged that there were such monies but that it was too much trouble to identify them. The “it’s too much trouble to comply” excuse obviously is nowhere to be found in the Constitution and demonstrates the extent of Trump’s contempt for its language.
In sum, the latest lawsuit invoking the emoluments clause may be the most powerful if only because it demonstrates the degree to which Trump and the GOP-led Congress dismiss the plain language of the Constitution they swear to uphold.