The American Prospect
The Emoluments Clause Could Be a Tipping Point in Trump’s Downfall
The obstruction of justice documented in Mueller’s report has gotten more attention, but Trump’s profiting from his office is an open-and-shut impeachment count.
On April 30, a federal district judge rejected Trump’s motion to throw out the lawsuit filed by approximately 201 members of the U.S. Senate and House of Representatives alleging that Trump has flagrantly violated the Foreign Emoluments Clause. The case was largely overlooked as national attention has focused on Trump’s obstruction of justice and his efforts to block further congressional scrutiny of his abuses of power.
U.S. District Judge Emmet G. Sullivan, in a comprehensive 48-page opinion, ruled that the narrow definition of “emoluments” advanced by Trump’s lawyers “disregards the ordinary meaning of the term as set forth in the vast majority of Founding-era dictionaries; is inconsistent with the text, structure, historical interpretation, adoption, and purpose of the Clause; and is contrary to Executive Branch practice over the course of many years.”
This was not the first time a federal judge has allowed such a case to go forward against Trump. Last July, in an equally comprehensive 52-page decision, U.S. District Judge Peter J. Messitte denied Trump’s attempt to dismiss a lawsuit filed by the attorneys general of the District of Columbia and the State of Maryland. Both these lawsuits in essence challenge Trump’s outrageous declaration that “I have a no-conflict situation because I’m president,” a haunting echo of Richard Nixon’s infamous and doomed claim that “when the president does it, that means it is not illegal.”
In gratitude to Benjamin Franklin for his service as American minister to France from 1776 to 1785, King Louis XVI gave him a snuffbox festooned with 408 diamonds. Two years later when the Founders wrote the new Constitution, they rejected absolute monarchy but feared that public officials could be corrupted by foreign gifts. They adopted the Foreign Emoluments Clause, which provides that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State,” (U.S. Const. art. I, § 9, cl. 8). The Domestic Emoluments Clause further provides that the president shall receive compensation for his services but prohibits the president from receiving “any other Emolument from the United States, or any of them.” (U.S. Const. art. II, § 1, cl. 7).
For the first time since the Constitution was ratified, both federal courts agreed with the plaintiffs that “emoluments” means “any profit, gain, or advantage” and rejected the president’s more narrow definition of “emoluments” to mean only a payment made as compensation for official services. Judge Messitte found Trump’s arguments “unpersuasive,” and “misplaced,” reflecting a “cramped interpretation” of the Constitution, which ignored the “large accumulation of historical evidence” and would lead to an “essentially absurd result.”
The lawsuit filed by the members of Congress asserts that Trump “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments.” In particular, they allege he owns “more than 500 separate entities—hotels, golf courses, media properties, books, management companies, residential and commercial buildings set up to capitalize on licensing deals,” from which the president himself has acknowledged “his businesses receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President.” Trump is the only president for at least 40 years who has not liquidated his business assets or put them in a blind trust.