Judges Thomas B. Griffith and David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit expressed doubt that past Supreme Court decisions permit individual lawmakers to bring lawsuits on behalf of the entire body, and they noted that Congress acts through majority votes in the House and Senate.
“You are not Congress,” Griffith told the lawyer for the Democratic lawmakers who allege the president is illegally profiting from his private business transactions. “You are not here representing Congress.”
“Here, you don’t even have one House,” Tatel added later.
But Griffith and Tatel also repeatedly pressed the Justice Department lawyer representing Trump on alternatives for Congress when it suspects the president is violating the anti-corruption ban through business activities.
“They want to play a role. The constitution gives them a role,” Griffith said.
Justice Department attorney Hashim Mooppan said Congress would have to pass a new law if it wanted to prevent the president from accepting payments from foreign governments. The emoluments clause at issue, he said, calls for Congress to affirmatively sign off on such payments.
“The only role that the Constitution gives Congress with respect to the foreign emoluments clause is to allow them,” Mooppan said.
Tatel questioned how members of Congress could perform their oversight role and approve the president’s business activities if Trump’s clients are not made public. “How could Congress pass a law without knowing what the president is doing in respect to emoluments?” Tatel asked.
The arguments came amid a set of cases over a rarely tested anti-corruption provision of the Constitution that bars U.S. officials from accepting payments or emoluments from foreign governments without consent from Congress. Challenges to Trump’s business dealings have been working through the federal courts for months with subpoenas for his financial records put on hold in the meantime.
An attorney for the Democrats told the court Monday that the president was required to receive approval from Congress before accepting emoluments. By not informing and asking Congress ahead of time, Trump was denying Congress “the vote to which they are specifically entitled,” said the Constitutional Accountability Center’s Elizabeth Wydra, representing the Democrats.
The court hearing also happened to coincide with the start of a key House Judiciary Committee meeting in the public impeachment proceedings, and Tatel referenced impeachment generally in a question to Trump’s lawyers.
Tatel noted the Founding Fathers were concerned about foreign influence and asked Mooppan, “So Congress, in your view, has no remedy other than impeachment?”
Mooppan declined to answer “whether allegations here rise to that level.”
Even as the sides argued over controlling activities under the clause, they continued to disagree about what would count as an emolument.
Justice Department lawyers say the ban refers narrowly to compensation in exchange for official action or in an employment-type relationship — and does not broadly include any profit, gain or advantage.
It was not emolument when the Saudi government paid for 500 rooms at the Trump hotel to lobby Congress — as they did shortly after Trump was elected — Mooppan said in reply to a judge’s question. But, he said, an expensive gift from a foreign leader to the president would be one.
Wydra countered that the Justice Department’s narrow definition minimizes the provision’s broad intent to guard against foreign influence. The emoluments clause was “not a constitutional cabinet of curiosities” barring presidents from accepting ceremonial gifts but an important tool against corruption.
The third judge on Monday’s panel, Karen LeCraft Henderson, did not ask a question.
The Democrats are asking the appeals court to enforce the emoluments clause by barring Trump’s business from doing business with foreign governments while he is in office. In the front row of the courtroom Monday was Sen. Richard Blumenthal (D-Conn.), one of the lead plaintiffs in the case. He rejected the idea that the entire legislature needed to speak with one voice to bring the lawsuit.
“Individual members of Congress simply cannot do their job” if there is no legal right or standing to sue, Blumenthal told reporters after the hearing. “If there’s no standing, then who enforces it?”
The lawsuit is one of three similar cases pending in appeals courts, one step below the Supreme Court, and has the potential to reveal details about the president’s closely held business interests. An appeals court in Richmond is set to take up another of the cases Thursday.
These cases are distinct from others already pending at the Supreme Court and involving subpoenas from House investigators and New York prosecutors seeking access to Trump’s tax and financial records. All were filed before the House began the public phase of its impeachment proceedings.
The congressional case heard Monday extends beyond Trump’s luxury hotel in downtown Washington, which he leases from the federal government and where the governments of Kuwait, Malaysia, Bahrain, Saudi Arabia and others have paid to hold events or book rooms.
Attorneys for the lawmakers from the nonprofit Constitutional Accountability Center said in filings that examples of Trump’s alleged violations have become “increasingly brazen.” They point to the administration’s recent decision, which it later reversed, to host foreign leaders at next year’s Group of Seven meeting at Trump’s Doral golf course in Florida.
Court filings from former national security officials, former members of Congress from both parties, legal historians and former government ethics officials back the conflict-of-interest concerns identified by the Democrats.
Other public officials, including past presidents, have had “no trouble modifying their conduct to comply with the Constitution,” according to the brief from the former ethics officials. “In all of our experience as federal ethics officers, we have seen few financial disclosure reports containing a web of personal and business entanglements that raise as many serious ethics concerns as President Trump’s — and we have never seen a President go to such lengths to obscure his finances from Congress and the American people.”
The congressional case reached the appeals court after District Court Judge Emmet G. Sullivan issued several opinions siding with congressional Democrats and adopting a broad definition of emolument based on what he found to be “overwhelming evidence” from “over two hundred years of understanding the scope of the clause.”
In June, Sullivan cleared the way for lawmakers to issue 37 subpoenas seeking financial information, interviews and other records, including ones related to Trump Tower and his Mar-a-Lago Club.
The appeals court intervened at Trump’s request in July and directed Sullivan to reconsider allowing the president’s midstream appeal to consider the untested separation-of-powers issues at stake.
The other emoluments cases working through appeals courts concern Trump’s hospitality-industry competitors in New York and the attorneys general in Maryland and Virginia,
The attorneys general will argue the case set for Richmond in a lawsuit centered on the president’s hotel in downtown Washington.