It is no excuse to say this was blessed by the Office of Government Ethics (led by an executive-branch appointee). For starters, the OGE is allowing Ivanka Trump to change the manner in which she gets paid, but is not requiring her to eliminate conflicts entirely. When the OGE allows her merely to “reduce her ‘interest in the performance of the business,’ ” it is permitting her to retain a good deal of interest in the performance of the business. It is far from clear why that should be acceptable.
It is more than a tad ironic that this disclosure comes on the day a federal court was hearing a challenge brought by the District and Maryland objecting to the flow of foreign emoluments into the Trump family coffers. They claim that Trump’s improper receipt of monies from foreign states harms them because his Washington hotel takes business away from other properties in D.C. and Maryland.
The government, arguing on Trump’s behalf, claims that his foreign emoluments are perfectly constitutional because he receives nothing (that we know of) in exchange. This would, of course, convert the word “emoluments” into “bribes,” a separate term the Framers used in other contexts (e.g., the impeachment clause). Not surprisingly, U.S. District Judge Peter J. Messitte seems perturbed by the government’s argument:
Messitte sounded skeptical of the Justice Department’s narrow definition of the ban, asking the government’s lawyer whether the clause would apply to foreign governments’ booking rooms and touting their patronage at Trump’s hotel to “get in good” with the president. “That’s not covered?” Messitte asked.
“I have learned over three decades of law practice not to predict how judges will rule,” Norman Eisen, a senior fellow at the Brookings Institution, told me on Monday. “All one can do is put your best foot forward when you have the opportunity to appear. D.C. and Maryland, who we at [Citizens for Responsibility and Ethics in Washington] serve as co-counsel, had by far the better of the argument today.” He continued: “Of course the emoluments clauses prohibit the flow of cash from foreign and domestic governments directly into Donald Trump’s pockets. That is established (as was discussed in court) by 100% of the dictionaries defining the term at the time the Constitution was written,” and added that “it also flows from the purpose of the emoluments clauses, including [the goal] to prevent the possibility of corruption.”
In a series of tweets, Eisen recounted that the judge asked whether the “whole point of the clause to flat out ban emoluments, [so you] don’t have to show quid pro quo.” In a discussion about the meaning of the emoluments clause, the judge also noted that 92 percent of dictionaries reflect the plaintiff’s interpretation (“profit, gain or advantage”) while only 8 percent follow the government’s definition (i.e., essentially a bribe).
It is impossible to predict with any certainty the judge’s decision. One thing is certain: We are going to get an historic decision squarely on the meaning the of emoluments clause. The administration made a risky argument that an emolument is coterminous with a bribe. To the extent the judge expressed significant skepticism about that approach, Trump and his family have reason to worry. If ordered to turn over information about his finances and seek permission from Congress (as required by the plain text of the Constitution) to continue receipt of things of value from foreign governments (e.g., trademarks), Trump will face a nightmarish challenge that has absolutely nothing to do with special counsel Robert S. Mueller III.
The decision is expected in July.