A federal judge on Wednesday rejected President Trump’s latest effort to stop a lawsuit that alleges Trump is violating the Constitution by continuing to do business with foreign governments.
The ruling, from U.S. District Judge Peter J. Messitte in Greenbelt, Md., will allow the plaintiffs in the case — the attorneys general of Maryland and the District of Columbia — to proceed with their case, which says Trump has violated the Constitution’s little-used emoluments clause.
The plaintiffs now want to interview Trump Organization employees and search company records to determine which foreign countries have spent money at Trump’s hotel in downtown Washington.
This is the nightmare — or one of them — that Trump has long feared, namely litigation in which his business operations, perhaps even his tax returns, are laid bare. Norman Eisen, who is co-counsel with the District and Maryland, tells me, “It is another major crack in the dam that has so far been holding back accountability. [Special counsel Robert S. Mueller III] is closing in; [Michael] Cohen is about to cut a deal; and now we have taken another leap forward in being able to understand how Trump is profiting off the presidency, including possibly from Russia.” He adds, “‘Follow the money,’ the old adage goes, and we are going to do exactly that thanks to this decision.”
The decision, running over 50 pages, is an impressive, detailed analysis of the Constitution and 18th century language. This is a judge who did his homework. The ruling is the inevitable result of Trump’s decision to maintain ownership of his far-flung business operations and to continue to reap the benefits, foreign and domestic, resulting from his presidency. (Ivanka Trump sure seems prescient in her decision to dump her clothing business, which raises many of the same issues of conflicts of interest and foreign emoluments as her father faces.) The court held: “Plaintiffs have convincingly argued that the term ’emolument’ in both the Foreign and Domestic Emoluments Clauses, with slight refinements that the Court will address, means any ‘profit,’ ‘gain,’ or ‘advantage’ and that accordingly they have stated claims to the effect that the President, in certain instances, has violated both the Foreign and Domestic Clauses.” In doing so, the court rejected Trump’s argument that an emolument is only an emolument if the president gives the foreign government something in return. The court explained:
The text of both Clauses strongly indicates that the broader meaning of “emolument” advanced by Plaintiffs was meant to apply. As Plaintiffs point out, the Foreign Clause bans, without Congressional approval, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” U.S. Const. art. I, § 9, cl. 8 (emphasis added). Use of such expansive modifiers significantly undermines the President’s argument that this Clause was meant to prohibit only payment for official services rendered in an employment-type relationship. If there were any doubt as to the limits of the Foreign Clause, the Framers used the word “any” twice, ensuring a broad and expansive reach. The President’s argument that these modifiers merely ensure that the Foreign Clause bans receipt of every type of “present,” “emolument,” “office,” or “title” is unconvincing. Even without the inclusion of the modifier “of any kind whatever” in the Foreign Clause, it would still ban every type of prohibited category because it provides no exceptions. If “no word was unnecessarily used,” as the President argues … his own position runs aground. The more logical conclusion is the one that Plaintiffs urge: The use of “any kind whatever” was intended to ensure the broader meaning of the term “emolument.”
The court cited approvingly Maryland and D.C.’s argument that “the purpose of the Clause was to prevent the least possibility of undue influence and corruption being exerted upon the President by foreign governments. … That is, the Framers created a prophylactic rule to prevent the slightest chance of such influence.”
Likely included in the broad definition endorsed by the court would be hotel room rentals, trademarks, licensing deals and other benefits afforded to Trump businesses. While the Constitution allows Congress to approve emoluments, the emoluments have to be identified. If Democrats take one or both houses in the midterms, you can be sure they will not approve any foreign receipts, but rather, will dig to find Trump’s foreign monies and perhaps even make him cough them up. Trump might finally face the prospect of choosing between his business interests and his presidency.
Laurence Tribe, who along with Eisen has been making the emoluments argument in court and in the court of public opinion, says, “It’s an extremely significant ruling, the first federal judicial decision addressing — and endorsing — the theory we have been advancing on the Emoluments Clause ever since the start of the Trump administration.” On that, Trump would no doubt agree. You can be sure Trump will try to appeal the ruling.
UPDATE: Citizens for Responsibility and Ethics in Washington released a statement, which read in part: “This is a historic day for the Constitution. We are honored and proud to represent the state of Maryland and the District of Columbia alongside Attorneys General Brian Frosh and Karl Racine as a federal court considers evidence of presidential violations of the Emoluments Clauses for the first time. ” CREW continued, “Americans need to know that their president is acting in their interest and not in the interest of his private businesses. President Trump has refused again and again to separate himself from his business empire to avoid pervasive conflicts of interest and constitutional violations. A court has now decided that the Emoluments Clauses, put in place by the framers of the Constitution to protect against corruption, are broad and can be enforced in court.” CREW concluded, “We look forward to working with Maryland and the District of Columbia to prove their case and stop these insidious violations.”