Last week, nearly 200 congressional Democrats filed a lawsuit against President Trump, alleging that he is violating the emoluments clause of the Constitution by accepting payment from foreign visitors to his hotels. Two days earlier, the attorneys general of the District and Maryland had filed their own lawsuit alleging the same.
The emoluments clause has become a rallying cry for those who think that Trump is more interested in making money off his presidency than in actually governing — and that payments from foreign nationals at Trump properties appear to match the concerns about foreign influence that the founders had in mind when they wrote the clause.
But like many things with Trump, holding him accountable on his promise to donate such funds to the Treasury Department will probably be difficult — and a recent denial of a Freedom of Information Act request by the agency shows just how tough it will be to ensure that all payments from foreign visitors are handed over to the government.
Several months back, I filed a request seeking records of any donations to the Treasury Department made by the Trump Organization, the president, his sons and Allen Weisselberg, the organization’s chief financial officer. In April, Treasury denied my request, saying that I would need detailed information like bank account and routing numbers for the agency to search its logs for donations from Trump or his organization.
Obviously, that’s something the president and his organization probably aren’t going to hand over. Which means getting independent verification from the government that the Trump Organization really is donating foreign-origin profits from its hotels could be close to impossible.
“This is emblematic of this hyper-bureaucratic procedural dance that, too often, agencies require requesters to play,” said Adam Marshall of the Reporters Committee for Freedom of The Press. “I think ultimately, FOIA is not supposed to be a game where requesters have to know magic words and incredible amounts of specific information in order to get the records they’re seeking.”
Zephyr Teachout, a law professor and one of the attorneys working on an emoluments lawsuit brought against the president by the legal watchdog group Citizens for Responsibility and Ethics in Washington, said the denial was just another sign that it would be difficult to hold Trump accountable on his promise to donate foreign profits.
“When I say Trump’s plan lacks oversight, that’s actually being too kind, because there simply is no oversight,” Teachout said. “It’s basically entirely up to the whims of the president.”
In its letter to me, the Treasury Department noted that the Trump Organization announced in March that it would donate foreign profits from 2017 some time in 2018. But the company has never given specifics as to how foreign payments would be tracked, and an internal document released in May showed that the organization would not ask guests whether they were associated with foreign governments.
“It is not the intention nor design of this policy for our properties to attempt to identify individual travelers who have not specifically identified themselves as being a representative of a foreign government entity,” the document read.
So the Trump Organization says it won’t dutifully track foreign payments, and Treasury says that, without the organization’s bank and routing numbers, it’s unable to produce records of any donations.
“An agency has the responsibility to look for records when it gets a request,” Marshall said. “It can’t just say, ‘here’s a news article that is somewhat related to your request.’ ”
Even if Trump donates every penny earned from a foreign national spending the night in one of the president’s hotels, Teachout thinks he would still be in violation of the emoluments clause.
“It’s like sinning and then paying a penance, except you don’t get to sin against the Constitution,” she said.
The White House did not respond to a request for comment on the Trump Organization’s plans to donate foreign payments, the Trump Organization could not immediately be reached for comment, and Treasury did not return a request for comment on its denial of my records request. But a Justice Department motion filed last week to dismiss CREW’s lawsuit shows just how little Trump thinks he is in violation of the emoluments clause — a sin he says he has not committed but is willing to pay penance for, in Teachout’s parlance.
“[CREW’s] broad-brush claims effectively assert that the Constitution disqualifies the President from serving as President while maintaining ownership interests in his commercial businesses,” the government wrote in a 50-plus page memo attached to its motion to dismiss.
Government lawyers argued that CREW hasn’t actually been harmed by Trump, as its lawsuit alleges. Furthermore, the attorneys argued, claims made by restaurant and hotel owners represented in the lawsuit that they’re losing business as visitors in New York and Washington flock to Trump’s properties are without “sufficient facts to support any nonspeculative loss of business due to competition with restaurants and hotels in which the President has financial interests — let alone the nonspeculative loss of government-affiliated and funded patrons.”
While CREW has yet to file a response to the government’s motion to dismiss, Teachout criticized the filing as “a vision of incredibly broad presidential immunity that simply doesn’t line up with the Constitution itself.”
Regardless of the outcome of the litigation, it’s likely that Trump will eventually make a show of donating money from foreign visitors to his properties. But whether there will be any way to fact-check his claim of donating all profits from foreign visitors is another matter entirely.
“Even if we knew how he planned to track foreign payments in order to donate them, there is zero oversight,” Teachout said. “The basic story is that we are simply being asked to trust him.”