On Monday in federal court in New York, the bipartisan watchdog group Citizens for Responsibility in Government in Washington, or CREW, sued President Donald Trump for taking money from foreign governments through his business ventures. I am one of the lawyers on the suit.
The lawsuit is a response to an extraordinary situation in which the President of the United States is benefiting from business relationships with foreign countries. Needless to say, those countries have a deeply vested interest in presidential decisions regarding trade and military policy.
The framers of our country anticipated that such a situation would occur, and that it would lead to corruption. They included in the Constitution a clause — the so-called emoluments clause — that prohibits officers of the United States from accepting anything of value from foreign governments without explicit congressional permission.
President Trump is violating that clause. His businesses are taking payments from entities owned by the governments of China, the UAE, he is about to be paid by Kuwait, and he is getting benefits and possibly payments from dozens of other countries.
Of course, because he has not released his tax returns publicly, we do not know the full scope of the payments and benefits.
The lawsuit filed by CREW asks for a declaratory judgment and an injunction of these illegal payments. In the course of that lawsuit, we will need to get discovery of those tax returns so we can figure out the full scope of the payments.
CREW did not want to have to go to the courts and had hoped President Trump would have liquidated his assets to avoid conflicts before taking office.
But besides Trump’s curt statement that the lawsuit is “without merit,” what do we know about his approach towards the Constitution? His lawyers’ public response has been to misread and trivialize what the framers of our constitution saw as a foundational American rule.
At a press conference held a few weeks before President Trump took office, his lawyer Sherri Dillon said, “No one would have thought when the Constitution was written that paying your hotel bill was an emolument.”
This is wrong on two counts.
First, it is wrong because the framers absolutely would have considered a hotel bill an emolument. The relevant clause forbids those holding an “office under the United States” from accepting “gifts” OR “emoluments” “of any kind whatever.”
Second, it is wrong because it suggests the scope of Trump’s foreign payments and benefits are from hotel bills; in fact they include substantial leases, substantial payments for “The Apprentice” and spinoffs, and substantial development-related benefits in many countries.
Likewise, Dillon’s announcement that Trump will donate profits from foreign governments’ payments to his hotels suggests the President is above the law, and can unilaterally decide to fashion his own solution to a conflicted situation, instead of following the remedy required by the Constitution. By first accepting the payments, and then donating them, Trump is still in the practice of receiving profits he is not legally allowed to receive.
CREW’s lawsuit asks for a declaratory judgment and an injunction: All it wants is for the unconstitutional behavior to stop. Let us hope that before it gets to court, President Trump and his team change their posture, and stop violating foundational anti-corruption principles of our country.
