“Emoluments” is just an elegant word for corruption, at least in our Constitution. The framers were particularly worried about foreign powers bribing or trying to influence the infant republic. Their solution was to allow gifts, money and the like to be accepted by members of the executive branch only if Congress approved. Put differently, one of the constitutional duties elected lawmakers take on is the responsibility to prevent the corruption, or appearance of corruption, by foreign powers of the executive branch.
Every president until this one has voluntarily complied, jettisoning foreign businesses and assets and/or asking permission to receive foreign gifts. Not President Trump. He and his relatives who work in the executive branch retained businesses that operate overseas; they frequently receive all sorts of monetary benefits from foreign governments. Ivanka Trump just got a batch of trademarks from China. Trump hotels are filled with foreign dignitaries, paying handsomely so the president can see that they are filling his coffers.
In federal court on Thursday, a hearing was held in one of three current cases seeking to enforce the emoluments clause. This one is brought by about 200 Democratic lawmakers seeking to enforce the constitutional provision that requires the president (and his daughter and son-in-law who work in the executive branch) to ask Congress before receiving things of value from foreign governments.
Thursday’s hearing in the U.S. District Court for the District of Columbia focused solely on whether the lawmakers have suffered the required injury to bring the case forward. The lawmakers say they’ve been injured because they’ve been denied their Constitutional right to vote on whether Trump can accept the payments, benefits and gifts. The Trump administration argues that the lawmakers have not suffered injury because they have the ability to pass legislation making requirements of the president.
But of course they cannot because Republicans refuse to take it up and the president would refuse to sign such legislation. Moreover, Congress doesn’t need legislation; it has the Constitution. It needs a court to assist in enforcing what no other governmental body can, the protection against foreign corruption.
Sen. Richard Blumenthal (D-Conn.), who, together with Rep. Jerrold Nadler (N.Y.), the ranking Democrat on the Judiciary Committee, is leading the case, told me in a phone interview, “The judge asked some tough questions, all the right questions.” He said he was “very encouraged” but couldn’t predict how the judge would rule. He recalled from the hearing that the judge asked, looking at the lawmakers, if it was right that Congress couldn’t do its job without a court order. Yes, Blumenthal says, that’s the point.
Blumenthal said that while Congress has the power to approve or not approve the president’s receipt of foreign monies, “We can’t approve what we don’t know.” He explained that the plaintiffs are merely seeking an order requiring the president to tell what foreign monies he is getting and get permission before pocketing them. (This would apply both retroactively and prospectively.)
It is the height of chutzpah for the administration to claim that Congress can always pass a resolution or that litigation has to be on behalf of the whole Congress. Anyone talk to House Speaker Paul D. Ryan (R-Wis.)? In other words, because Republicans are delinquent in their duties, the Trump administration argues, responsible lawmakers cannot enforce a constitutional provision. That in effect renders the emoluments clause a dead letter when the president’s party controls Congress. That does not seem to comport with the framers’ acute concern with preventing foreign corruption.
The hearing was more relevant than ever. We recently learned a $500 million loan was granted by China to an Indonesian development Trump is involved in; literally days later a settlement with China telecom company ZTE, which was held to have violated sanctions and imperiled U.S. national security, was announced. “We have no information to prove a connection between the two,” Blumenthal says. And that is because Congress has no way of knowing what Trump owns, what he gets and what connections there are between private businesses and public actions. “This is not just corruption,” Blumenthal says. “It’s also about national security.” For Trump, however, it’s about the money.
In a joint written statement, Nadler and Blumenthal reiterated, “When President Trump ignores the Foreign Emoluments Clause’s clear and explicit requirement that he receive Congress’s affirmative consent before accepting payments, gifts, and benefits from foreign governments, he robs each and every member of Congress — and, by extension, the American people they represent — of their right and responsibility under the Constitution to vote on any such emoluments.” He added, “President Trump has illegally collected trademarks from China, rent paid by foreign governments at his buildings, and hundreds of millions of dollars of loans to benefit his bottom line, and these benefits — known to us only because of the tenacious investigation of our free press — are likely only the tip of the iceberg. Our government cannot be preserved free of corruption, and our national security cannot be effectively defended, until the court reminds the President that he is not above the law.”
Unless and until Republicans decide to do their job (which is a pipe dream) or Democrats get a majority in one or both houses, the stench of corruption will hang over the White House. The Constitution is being violated in plain sight; now, the question is whether the courts will assist Congress in doing something about it.