On Friday, the Department of Justice filed its motion to dismiss in Citizens for Responsibility and Ethics in Washington’s emoluments lawsuit. The lawsuit challenges the President’s continued financial stake in businesses that are regularly frequented by and solicit business from foreign and domestic officials.

Richard Primus has already posted some quick reactions to the brief, including that DOJ’s reliance on Mississippi v. Johnson is misplaced. DOJ cited Mississippi v. Johnson for the proposition that courts have “no jurisdiction of a bill to enjoin the President in the performance of his official duties.” But as Richard explained:

What’s striking is that the CREW suit isn’t seeking “to enjoin the President in the performance of his official duties” in the first place.  It’s seeking an injunction requiring the President to divest himself of property that he personally owns.  

I think this point—that DOJ blurs the distinction between Trump's role as President and Trump's role as businessman—pervades more of DOJ’s brief than just its aggressive reliance on Mississippi v. Johnson.

DOJ’s brief seeks to portray CREW’s suit as a suit against Trump as President when that portrayal is more favorable than it would be if the suit were against Trump (or the Trump organizations) as a private business. But elsewhere, DOJ’s brief depicts the suit as a suit against Trump’s businesses where that is the more favorable characterization. That DOJ is even able to describe the President's financial arrangements as both related to his official capacity as President and his private capacity as a businessman underscores the problem CREW's lawsuit seeks to address--the President's current financial arrangements themselves blur the boundary between the two, which (among other things) creates apparent conflicts of interest and the appearance of corruption.

At several points in its brief, DOJ depicts CREW’s suit as a suit against Trump as President, and as a suit that concerns the official workings of the U.S. government. One of those places is DOJ’s reliance on Mississippi v. Johnson, as Richard noted. Another one of those places is in DOJ’s arguments on standing. DOJ argues that standing requirements are more stringent where a case concerns “whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” That description suggests CREW’s suit is somehow related to the official actions of the Federal Government as the Federal Government (here, actions Trump has taken in his capacity as President).

That description relies on the idea that official actions of the federal government warrant a presumption of constitutionality, and that there are additional separation-of-powers concerns where a judge invalidates the official actions of the federal government than where a judge makes a determination involving private parties. By claiming there are additional separation-of-powers concerns in this case, DOJ’s argument on standing suggests CREW's lawsuit is not a case that primarily concerns the actions of a private entity, such as (for example) a privately owned business that operates hotels and restaurants.

Elsewhere, however, DOJ maintains that Trump’s business arrangements do not violate the Emoluments Clauses because the money Trump receives through those businesses (which is what the plaintiffs are challenging) is solely in his capacity as a private businessman.

So, for example, DOJ argues that the Emoluments Clauses apply only to the receipt of honors and gifts based on “official position,” and that “the Clause prohibits benefits arising from services the President provides to the foreign state either as President (e.g., making executive decisions favorable to the paying foreign power) or in a capacity akin to an employee.” (Emphases mine.) The Clause “does not,” DOJ explains “preclude a President from acting on the same terms as any other citizen in transacting business with a federal or state instrumentality.” And “it would be unnatural to describe a public official’s receipt of benefits from a business venture unrelated to his office” as something that the Foreign Emoluments Clause prohibits. (Emphases mine.) These descriptions suggest CREW’s suit concerns the President's activities in his capacity as a private businessman, no different than any other citizen.

That's not to say DOJ's positions aren't reconcilable.  But that DOJ can even describe this case in those two ways goes to the core of the serious issues with Trump’s continued role in his businesses.  Trump’s current financial arrangements are such that we don’t really know when Trump has on his business-man hat instead of (or in addition to) his presidential one.

When Trump shows up at the hotels or events at his hotels frequented by foreign or domestic officials, is he doing so in his capacity as president, as businessman, or some combination of the two? When Trump’s children show up at these events, are they acting in their political capacities (i.e., as people who advise the President on policy), or as business persons? When Trump makes a decision related to foreign policy in his capacity as President, is he doing so for presidential reasons or for business ones?

DOJ’s brief shouldn’t make us feel any better about those concerns since DOJ, at times, portrays CREW’s suit as one that concerns an official action of the President, and other times as a suit that concerns a private, business arrangement.

I'll have more to say later about DOJ's brief. As I’ve explained previously, I think the additional plaintiffs that have been added since the first complaint was filed have standing. DOJ’s brief makes some good points on standing, but I still think the plaintiffs have made sufficient allegations, at this point, to establish injury, causation, and redressability, as I’ll explain in a subsequent post.

I was less impressed by DOJ's brief on the merits, in part because of the inconsistency I've described.  Even on top of that, it's not entirely clear what DOJ thinks the Emoluments Clauses mean.  DOJ seems to suggest that "emoluments" means any compensation or gifts that are given to the President in his official capacity.  But elsewhere, DOJ opens the door to the possibility that payments made to a President because he is the President are compensation or gifts given to the President in his official capacity. (For example, the brief suggests emoluments do not include payments "having nothing to do with" the President's office, or are "completely unrelated" to the office.  But what about payments made to the President's businesses that would not have been made but for the fact that he is the President?) A longer post on that point will have wait for another day, too.

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