Saturday, August 12, 2017

Courts Asked to Examine Trump's 'Emoluments'

       Jimmy Carter placed his peanut farm into a blind trust before moving into the White House to eliminate any risk of conflict of interest with his presidential powers and duties. As candidate and then as president, Donald Trump made a pretense, but no more than that, of separating himself from a still undisclosed web of business interests not only in the United States but also in countries throughout the world.
       As candidate, Trump's refusal to detail his financial interests was a political issue that failed to block his path to the White House. As president, however, Trump's continuing profit from businesses patronized by foreign and state governments alike amounts to a legal issue and, according to many legal experts, an ongoing violation of two provisions of the Constitution: the domestic and foreign emoluments clauses.
      Trump is facing three separate lawsuits that accuse him, in effect, of making a personal profit out of the White House from state and foreign governments seeking to curry favor with him. The Framers of the Constitution were concerned enough about the risk of such corruption to write two separate clauses to prevent it. (For the text, see Art. I, § 9, cl. 8; Art. II, §1, cl. 7).
       Con law courses mostly skip over the Emoluments Clauses because the Framers did their jobs so well that the feared risk of official corruption has mostly failed to materialize. But the Trump presidency now challenges the Framers' handiwork with the question of how to apply the clauses to a president unwilling to accept established political norms limiting personal profit-making at 1600 Pennsylvania Avenue.
      At the six-month mark, Trump must be rated as a mostly failed president with record-high disapproval ratings and nothing by way of major legislation. But the White House has been very good for business at the Trump Hotel just down the street.
       The Trump Hotel had been projected to lose $2 million in the first four months in 2017, but instead turned a $2 million profit, according to an account in the Washington Post (Aug. 11). Rooms at the hotel rent for $600 a night and cocktails sell for as much as $100 to patrons who include foreign diplomats, political figures, and business interests. In another instance of price gouging, fees at Trump's Mar a Lago golf resort were doubled in January over what they had been a year earlier.
      The Emoluments Clause lawsuits may be misunderstood by some as asking courts to oust Trump as president; they are not. The lawsuits ask courts to define the scope of the clauses broadly, find Trump in violation of the clauses, and prohibit any further violations. The remedy would be a huge judicial undertaking, but it would not entail a reversal of the 2016 election even if some of those cheering the lawsuits on would welcome that result.
      The lawsuits serve a salutary purpose even if ultimately unsuccessful. If the plaintiffs are allowed broad discovery, the public can finally learn the details of Trump's finances that he refused to disclose during the campaign.That information would help the public judge his presidency and would also help members of Congress in considering their own powers, up to and possibly including impeachment.
      For now, questions such as those are months down the road as the three pending lawsuits move slowly through separate courts. In the first of the three, the Washington-based Citizens for Responsibility and Ethics (CREW) in Washington is leading an assortment of private plaintiffs in a suit filed in January in federal district court in New York City. Other plaintiffs include a hotel and restaurant owner in New York City and an event booker in Washington, who say they are hurt by the competitive advantage Trump enjoys thanks to being president. The two other suits are pending in federal court in Washington: one brought by the District of Columbia and Maryland and the other by a record 196 members of Congress (Blumenthal v. Trump).
      CREW's suit is now set for an initial hearing before Judge George Daniels on October 18 after opening legal briefs from both sides and from various friends of the court. In the interest of brevity, the briefs will be crunched down here to the major points of disagreement.
      The first issue is the very definition of the word "emolument," so little used in common parlance. The Justice Department lawyers representing Trump argue that it does not encompass profits from arms-length commercial transactions, only compensation for official services. Both sides cite dictionary definitions, but etymology favors the broader construction argued in the plaintiffs’ brief. The root is the Latin verb "molere" meaning to grind. In Middle French, an emolument was the fee the farmer paid to the miller for grinding: an arms-length commercial transaction of the sort Trump's lawyers say is excluded.
      Trump's lawyers naturally argue the plaintiffs have no standing, but the competitively disadvantaged business operators make a good case that they are being hurt right now. Just as naturally, the Justice Department argues that courts have no power to enjoin the president: they cite a 150-year-old Supreme Court decision as authority, but skip lightly over more recent decisions. Like so much of Trump's unpredictable presidency, the outcome defies predictions. For court watchers and public alike, the best advice: stay tuned.

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