//  11/9/17  //  Latest Developments

Late last month, news broke that the Trump Organization would be breaking ground on new projects in India, despite its promise that there would be “no new foreign deals” while the President is in office.  Public reporting has turned up that new deal, but it’s impossible to know what other new deals might similarly be in the offing.  It’s yet another reminder (as if one were necessary) that the President’s refusal to go to Congress and obtain consent before he accepts benefits from foreign governments, as required by the Constitution, means that both Congress and the American people may remain in the dark about many benefits the President is receiving—and, in turn, how those benefits may be influencing his policy judgments.

The President’s willingness to flout the Constitution may be continuing unabated, but so too are efforts to hold him accountable to the Constitution.  Indeed, there were recently important developments in one such effort – Blumenthal, Conyers, et al. v. Trump, the case in which more than 200 members of Congress are suing the President for his violations of the Foreign Emoluments Clause.

My colleagues at the Constitutional Accountability Center and I represent the plaintiffs in this case and, on October 26, we filed a brief responding to the President’s motion to dismiss.  In this brief, we explain in detail why the members of Congress have standing under well-established Supreme Court and D.C. Circuit precedent, which recognizes that “members of Congress are harmed in their institutional roles when an official performs a specific act that requires congressional consent without having obtained it.”  Here, that’s exactly what President Trump has done by accepting foreign emoluments without first obtaining congressional consent, as the Constitution requires.  The plaintiffs’ gripe isn’t with their colleagues, as the President would have it, because so long as the President is accepting emoluments without first obtaining congressional consent, there is nothing that anyone in Congress can do to remedy the members’ injury.  The brief, available here, explains why that is in great depth.

We also explain why President Trump’s crabbed understanding of the scope of the Foreign Emoluments Clause is “truly outlandish”— “unmoored from the constitutional text, the meaning of the word ‘emolument,’ the Framers’ reasons for adopting the Clause, and the manner in which the Clause has been interpreted since its adoption more than two centuries ago.”  As we explain, the President’s definition of the term “emolument”—one that seems “designed only to trace the contours of his own financial dealings”— “is drawn from thin air.  Its first part, requiring an employment-like relationship, is based on a flawed reading of Founding-era dictionaries.  Its second, requiring the provision of specific services in an official capacity, is based on nothing at all.”  Moreover, as we further explain, Trump’s “proposed rule would defeat the Clause’s purpose—throwing open the doors to the corruption of any officeholder wealthy enough to own businesses and reducing the Clause to a mere bribery law, not a prophylactic safeguard against the possibility of corruption.”  Again, the whole brief is available here.

In addition to our own brief, six amicus briefs have now been filed in support of the plaintiffs.  All of them are well worth a read.

First, there is the brief of “former national security, foreign policy, and intelligence officials who have worked at the senior-most levels of the U.S. government for Presidents of both major political parties.”  Its signatories include former Secretaries of State Madeleine Albright and John Kerry and former Secretary of Defense Chuck Hagel.  These former national security officials explain why the Foreign Emoluments Clause is critically important to our national security, and they further explain that the President’s “reading of the Foreign Emoluments Clause would give [him] license to engage in a wide range of financial entanglements that could leave vulnerable even the most important national security and foreign policy interests of the United States.”  That brief is available here.

Second, there is the brief of a “bipartisan group of former members of Congress—Republicans and Democrats, Senators and Representatives—from across both the political spectrum and the nation.”  Its signatories include former Senators Barbara Boxer and Tom Harkin and former Representatives Mickey Edwards, Lee Hamilton, and Bob Inglis.  “Together, [these former members of Congress] have nearly four centuries of combined congressional service.”  In this brief, Republicans and Democrats alike make clear what an important role the Foreign Emoluments Clause assigns Congress.  By requiring the President and other federal officials who want to accept benefits from foreign governments to go first to Congress and obtain consent, the Clause ensures that there is transparency and accountability when federal officials accept benefits from foreign governments.  And Congress cannot play the role it is supposed to when the President accepts emoluments without first obtaining consent.  That brief is available here.

Third, there is the brief of “former government ethics officials,” including Walter Shaub, former Director of the U.S. Office of Government Ethics.  These officials collectively have “decades of experience applying ethical rules in the real world, under administrations of both parties.”  In this brief, these ethics officials speak powerfully from their decades of experience: “we stress that in all of our experience as federal ethics officers, we have seen few financial disclosure reports containing a web of personal and business entanglements as thick and complex as President Trump’s—and we have never seen a President go to such lengths to obscure his finances from Congress and the American people . . . The allegations in the complaint identify conduct that is on the wrong side of every reasonable line a court could draw.”  That brief is available here.

Fourth, there is the brief of federal jurisdiction and constitutional law scholars, including Erwin Chemerinsky, Jamal Greene, and Matthew Hall, who “bring a perspective informed by more than 342 combined years of teaching, research, and writing focused on the important questions of constitutional interpretation raised by this case.”  In this brief, these scholars argue that the plaintiffs in this case have standing under well-established Supreme Court and D.C. Circuit case law.  As they explain, “The Emoluments Clause . . . prohibit[s] officers from accepting foreign benefits unless and until Congress holds a specific vote and passes specific terms of consent.  If no vote is held, the officer is constitutionally barred from accepting the benefit.  If Plaintiffs’ allegations that Defendant has violated this procedure are true—as the Court must assume for purposes of this motion—then Defendant has nullified identifiable voting opportunities guaranteed by the Constitution and eliminated the institutional powers afforded to the Plaintiffs (individually and as a bloc) to delay, deny, or shape the terms of consent.”  That brief is available here.

Fifth, there is the brief of “distinguished professors of constitutional and administrative law who are experts in separation of powers issues,” including Peter Shane and Peter Strauss.  In this brief, these scholars argue that dismissing this case would undermine, rather than enhance, the checks and balances embedded in our Constitution.  As they explain, “the true danger to the structure and processes set forth in the Constitution lies not in permitting this case to proceed, but, rather, in dismissing it.  Acceding to [President Trump’s] suggestions that this case is non-justiciable would require Congress to take affirmative action in the event that the President accepts foreign emoluments absent congressional consent.  Such an outcome would turn the Foreign Emoluments Clause on its head, undermining the President’s duty to comply with his Constitutional obligations and abrogating the judiciary’s duty to police the structure of the Constitution.”  That brief is available here.

Finally, there is the brief of legal historians, including John Mikhail who has undertaken a “comprehensive study of how ‘emolument’ is defined” in English language dictionaries and common law dictionaries from 1523-1806.  This brief explains why President Trump’s crabbed understanding of the scope of the Foreign Emoluments Clause is flat wrong.  As these scholars explain, the President’s “historical claim is flawed for at least three overlapping reasons.  First, DOJ’s definition of ‘emolument’ is inaccurate, unrepresentative, and misleading . . . Second, DOJ’s interpretation is at odds with historical understandings of the Emoluments Clause and of similar prohibitions adopted from 1776 to 1789.  Third, DOJ’s interpretation of this clause is inconsistent with the founders’ purposes of preventing corruption and conflicts of interest, avoiding dangerous foreign entanglements, and preserving a careful balance of state and federal power.”  That brief is available here.

In sum, these briefs make a number of important points, but two particularly stand out: the Foreign Emoluments Clause is a critically important provision in our Constitution, and if the President is going to insist on continuing to violate it, it is the responsibility of the courts to stop him.


Tax Consequences of Legal Defense Funds

10/24/17  //  In-Depth Analysis

President Trump and a number of his associates have established legal defense funds (LDFs) in connection with various Congressional investigations. What rules govern these LDFs?

Take Care

Versus Trump: So, Can California Really Do That?

10/5/17  //  Commentary

On this week’s episode of Versus Trump, Charlie and Jason discuss a recently-passed bill awaiting the signature of California Governor Jerry Brown that, if signed into law, would require presidential candidates to disclose five years of federal of tax returns in order to appear on the ballot in California. Jason and Charlie ask each other whether California has the constitutional power to do that, and, if so, whether it's a good idea. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

DOJ's Unconvincing New Definition of 'Emolument'

9/23/17  //  In-Depth Analysis

The President's reply brief in CREW v. Trump offers a new (and flawed) definition of 'emoluments'

Marty Lederman

Georgetown Law