On Monday morning, a liberal watchdog group filed a lawsuit against President Trump, alleging he\u2019d violated a previously obscure provision in the Constitution, the \u201cEmoluments Clause.\u201d
The watchdog group, Citizens for Responsibility and Ethics in Washington, said that the clause prohibits Trump-owned businesses from accepting payments from foreign governments.
They asked a court to stop Trump\u2019s businesses from taking them now.
\u201cThis cannot be allowed,\u201d the group wrote in its legal complaint.
[ Watchdog group sues Trump, alleging he violated constitutional ban ]
Trump called the case \u201ctotally without merit\u201d during an event at the White House on Monday.
Even if this case runs aground in court, there could be others. In fact, one of the parties best positioned to sue Trump might be the D. C. government \u2014 if D. C. officials decided it was worth the risk to sue the president.
Below are four questions about the Emoluments Clause and what it might mean for President Trump.
1. What, exactly, is the Emoluments Clause?
It is 49 words in Article I of the Constitution.
\u201cNo Title of Nobility shall be granted by the United States: And 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 whatever, from any King, Prince, or foreign State. \u201d
In this instance, the words that matter most are the ones we have placed in italics.
According to legal scholars, these words were added out of a concern from the 1700s that American ambassadors, on the far side of the ocean, might be corrupted by gifts from rich European powers.
Benjamin Franklin, for instance, had accepted a snuffbox festooned with 408 diamonds from the King of France. John Jay accepted a horse from the King of Spain.
After that, the Emoluments Clause rarely came up again. It\u2019s never been the subject of a major court case and never been taken up by the Supreme Court, leaving great uncertainty about what it means \u2014 and to whom, exactly, it applies \u2014 in the 21st century.
2. Is President Trump violating the Emoluments Clause?
That\u2019s uncertain.
The group that filed Monday\u2019s lawsuit \u2014 whose attorneys include prominent ethics lawyers from the Barack Obama and George W. Bush White Houses \u2014 says Trump is in violation.
Their logic is that the clause prohibits Trump from taking any money at all from a foreign state. To them, the clause prohibits not just straight-up gifts but also payments for services rendered. So it would prohibit a Trump-owned hotel from renting a ballroom to a foreign embassy and prohibit Trump Tower from renting out office space \u2014 as it already does \u2014 to a state-controlled Chinese bank.
In their complaint, they ask a federal judge to stop Trump\u2019s businesses from taking those payments.
\u201cA federal officeholder who receives something of value from a foreign power can be imperceptibly induced to compromise what the Constitution insists be his or her exclusive loyalty: the best interest of the United States of America,\u201d the group wrote in its legal filing.
Trump and his attorneys have rejected that idea.
Although Trump has promised to relinquish management of his companies to his two oldest sons and top executives, he will continue to own the businesses.
His attorney said Trump will avoid running afoul of the Constitution because his businesses will not be accepting gifts from foreign countries, rather they\u2019ll be accepting payments, for services rendered.
\u201cPaying for a hotel room is not a gift or a present,\u201d attorney Sheri Dillon said at a news conference before his inauguration .
Dillon also sought to address a secondary concern \u2014 that foreign governments might turn those payments into gifts, by wildly overpaying Trump for a ballroom or a round of golf.
Dillon said that Trump would turn over \u201cprofits\u201d from foreign governments at his hotels to the U. S. treasury. It is unclear, however, exactly how Trump\u2019s businesses would calculate that, because the Trump Organization hasn\u2019t provided any details on how such payments would be tracked, collected and dispersed.
Is that enough?
[ For foreign diplomats, Trump hotel is place to be ]
\u201cToo many people are asserting more than they could possible know,\u201d said Seth Barrett Tillman, a lecturer on American law at Maynooth University in Ireland who has studied the Emoluments Clause. \u201cUntil the courts speak \u2014 particularly the Supreme Court \u2014 we don\u2019t know.\u201d
3.) Will the lawsuit work?
That depends on what you mean by \u201cwork.\u201d
Several legal experts have said they doubt a federal judge would give the watchdog group a full victory. One big question: Does the watchdog group even have \u201cstanding\u201d to sue Trump in the first place?
\u201cJust complaining about bad government does not give rise to standing \u2014 or you or I would have standing to challenge just about anything that goes on.\u201d said Erik Jensen, a law professor at Case Western Reserve University in Cleveland . \u201cAnd the system just couldn\u2019t work.\u201d
To have standing to sue, the watchdog group must show evidence it was harmed by Trump\u2019s actions. The group says it can. The logic: Its workload has increased because Trump has given them new concerns to investigate.
\u201cThe injury to the organization is that it\u2019s much more difficult to accomplish the organization\u2019s mission,\u201d said Richard Painter, a University of Minnesota law professor and former chief White House ethics lawyer for President Bush. He is one of the attorneys on the case and vice chairman of the watchdog group\u2019s board. \u201cBasically the administration has opened up a whole new avenue of corruption.\u201d
Other legal scholars are skeptical about this. They say that nobody \u2014 especially not Trump \u2014 forced the watchdogs to work on this issue.
\u201cThis injury is self-inflicted,\u201d Josh Blackman, a professor at the South Texas College of Law in Houston, wrote on his blog Monday. Therefore, he said, the argument \u201cdoes not find support in the [Supreme Court\u2019s] caselaw.\u201d
It\u2019s possible, however, that the lawsuit still could be a success for the watchdog group, even if a judge eventually rules against it.
If the case progresses far enough, for instance, Trump\u2019s businesses might be forced to turn over documents that detail their dealings with foreign governments. Trump might be forced to turn over his tax returns, which he has refused to do. The watchdog group could then use those to unearth more details about Trump\u2019s potential conflicts of interest \u2014 learning more about who he does business with and whom he owes money to.
[ Trump won\u2019t release his tax returns, adviser says, because people don\u2019t care ]
4.) Would somebody else have a stronger case?
Among those best positioned to raise the issue legally, according to experts, are business competitors who can demonstrate that they\u2019ve lost clients or profits to Trump firms, particularly in cases where Trump\u2019s presidency benefits his company.
Top on the list are hotels competing for that same foreign business, a group that includes investors from China, the United Arab Emirates and Qatar, as well as Washington-area developers and the D. C. government.
The owners of competing luxury hotels in the District include a range of large institutional investors, many of them from abroad. The Four Seasons in Georgetown, which lost thousands of dollars in business when the Kuwaiti Embassy decided to hold its National Day celebration next month at Trump\u2019s D. C. hotel, is majority-owned by Anbang Insurance Group, a Chinese insurance giant affiliated with the Chinese government.
The Four Seasons hosted the Kuwaiti event in previous years and initially planned to hold the 2017 event there as well. Although event organizers said they were under no political pressure to hold the celebration at Trump\u2019s hotel, that could place Anbang or another investor in the property, Chicago-based Strategic Hotels & Resorts, in position to take legal action.
Four Seasons Georgetown spokeswoman Liliana Baldassari is among those who has familiarized herself with the Emoluments Clause in recent weeks.
\u201cWe\u2019ve been taking a look at it,\u201d she said. She declined to comment however on whether the hotel\u2019s owners would utilize it.
Other hotel owners may have similar standing to raise the issue. The W Hotel nearby, also popular with the embassy crowd, is majority-owned by the UAE government, through a subsidiary of the Investment Corporation Of Dubai, a sovereign wealth fund. The St. Regis Washington is owned by a subsidiary of a Qatari investment firm, Al Faisal Holding, that was founded and is controlled by the country\u2019s richest man, Sheikh Faisal Bin Qassim Al Thani.
Suing the president, particularly one who freely uses Twitter to attack businesses and executives, would be a daunting effort for any business owner. For that reason, some experts expect attacks on Trump\u2019s business to originate with Democratic leaders or officials rather than competitors.
In that case, there may be no Democrats better positioned to take aim at Trump over the Constitution than the District of Columbia\u2019s mayor, Muriel E. Bowser (D), or its attorney general, Karl A. Racine.
Bowser and Racine may be loath to incite the new president, given the outsize influence the federal government has on the District\u2019s laws and budget rules. Bowser met with Trump at Trump Tower in New York after the election, and she said the president-elect told her that \u201che is a supporter of the District of Columbia, he\u2019s familiar with the District of Columbia, and he wants to be supportive.\u201d
[ Trump is a D. C. \u2018supporter,\u2019 mayor says after meeting with president-elect ]
But Bowser and Racine have a particular entree should they choose to pursue it: The D. C. government owns the land beneath the Marriott Marquis hotel and lent $383 million in taxpayer funds to the project.
The District also owns the land under the Conrad Hotel, a luxury 360-room property that is under construction downtown and will compete directly with the Trump hotel when it opens in the first quarter of 2019.
\u201cIf D. C. can allege that it has lost economically because of the benefits derived from the Trump violation of that Emoluments Clause, then D. C. could sue,\u201d argued Erwin Chemerinsky, dean of the University of California at Irvine School of Law and an American Constitution Society board member . \u201cAnd the way to do that would be to show that foreign governments are sending business to the Trump hotel that would otherwise go to D. C.\u2019s hotels.\u201d
Bowser\u2019s chief of staff, John Falcicchio, declined to comment, citing legal advice. Racine is already engaged in litigation with Trump because the president has sued the District over his hotel\u2019s tax bill.
Racine\u2019s spokesman, Robert Marus, issued a statement saying that \u201cgenerally speaking, we at the Office of the Attorney General will consider any viable legal claim that would advance the public interest of the District of Columbia. However, it would be inappropriate at this point to speculate on any litigation strategy or potential cause of action in a specific case, including any Emoluments Clause claim.\u201d<\/p>\n

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