//  3/14/18  //  Commentary

Last Friday afternoon, the Trump Organization announced that it had donated $151,470 to the U.S. Treasury, the purported profits from foreign government patronage of Trump hotels and clubs. Eric Trump, the President’s son and an executive in the Trump Organization, explained that they were making the payment because it is “simply the right thing to do.” But let’s be clear: this action doesn’t come close to getting the President right with his legal and ethical obligations. The right thing to do would be for President Trump to obey the Constitution, and this donation doesn’t begin to satisfy that obligation.

The Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust under [the United States]” from accepting any “present, Emolument, Office or Title, of any kind whatever” from a foreign state without first obtaining the “Consent of the Congress.” The Framers of our Constitution knew that if foreign governments could grease the palm of an American president, the opportunities for foreign influence and corruption would be endless.

While there’s a lot we don’t know about the President’s businesses, there’s one thing we do know: foreign governments have been making payments and giving other benefits to Trump businesses—and thus to the President, who retains ownership of those businesses. That’s a big problem under the Foreign Emoluments Clause, and this donation does nothing to change that.

As an initial matter, there’s no way to be sure that the Trump Organization is even giving all of the profits from foreign government patronage of its hotels and clubs to the U.S. Treasury, as its representatives have so loftily claimed. It’s not as if the Trump Organization has opened up its books, or provided even a semblance of transparency about how that figure was calculated. All it will say is that the donation was calculated in accordance with “our policy” and “common accounting standards.”

As of last May, the Trump Organization’s policy was to “not track[] all possible payments it receives from foreign governments.” As the Trump Organization itself explained in a glossy brochure, “[i]t is not the intention nor design of this policy . . . to attempt to identify individual travelers who have not specifically identified themselves as being a representative of a foreign-government entity on foreign government business” because doing so would be “impractical” and “diminish the guest experience of our brand.”

In short, the Trump Organization’s position was that it was too hard to actually calculate all profits from foreign government patronage at hotels and clubs. If that’s changed since May, they’re being surprisingly quiet about it.

But let’s assume the Trump Organization did calculate the profits from foreign government business at its hotels and clubs correctly. Those reported profits just begin to scratch the surface of benefits the President may be receiving from foreign governments.

As just one example, after the President took office last year, the Chinese government approved dozens of lucrative “new Trump trademarks,” and one industry observer said he “had never seen so many applications approved so expeditiously.” Meanwhile, at least three entities owned by foreign governments have been tenants of Trump properties in New York and San Francisco since Trump became President.

And that’s just what we know. Because President Trump has refused to provide any transparency about his businesses, there’s likely a lot more we don’t know. Benefits from foreign governments related to his business ventures abroad—permits, tax incentives, policy changes—would also violate the Foreign Emoluments Clause, and it’s not difficult to imagine that Trump businesses have been receiving those sorts of benefits.

Finally, even if the Trump Organization donated every cent it received from foreign governments, it wouldn’t solve the President’s constitutional violation. The Foreign Emoluments Clause broadly prohibits the President from accepting any benefits from foreign governments without first obtaining congressional consent. The President has not once sought or obtained congressional consent to accept these benefits, so he shouldn’t be accepting them. Period.

Here as in so many other areas, Trump may want to create his own rules, but no one, not even the President the United States, is above the law. He has to obey the Constitution, and the constitutional rule is simple: obtain congressional consent, or don’t accept benefits from foreign governments.


Versus Trump Live: Fairweather Federalism?

6/14/18  //  Commentary

On this week's special live episode of Versus Trump, Easha, Charlie, and Jason share the stage at the ACS National Convention in Washington, DC with Maryland Attorney General Brian Frosh and Stanford Law's Pamela Karlan. They discussed several important cases brought by states against the Trump Administration as well as the broader federalism issues presented by Democratic Attorneys General being involved in so many lawsuits against the federal government. Listen now!

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Supported by powerful amicus briefs, the plaintiffs in CREW v. Trump have urged the Second Circuit to hold that their claims must be decided on the merits

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On a new episode of Versus Trump, Jason and Charlie revisit two lawsuits in which the Plaintiffs have recently successfully fought off motions to dismiss and been allowed to proceed. And in a new installment of "Sanctions Corner with Uncle Charlie," Charlie answers questions about the FBI raid on the office of Trump lawyer Michael Cohen. Listen now!

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