Updates | The Week of October 23, 2017
The DOJ reversed its prior concession that the Foreign Emoluments Clause applies to the President. Oral arguments in the first Emoluments Clause challenge lingered on whether the issue is a nonjusticiable political question.
Updates | The Week of October 16
The DOJ could argue that the Foreign Emoluments Clause does not apply to elected officials such as the president. Arguments in CREW v. Trump, a challenge to President Trump's receipt of emoluments, began in the Southern District of New York.
Updates | The Week of September 25, 2017
Legal commentary continued over whether the Foreign Emoluments Clause applies to the President. The DOJ offered a new, narrower definition of an "emolument."
How the DOJ Brief in CREW v. Trump Reveals that Donald Trump is Violating the Foreign Emoluments Clause
The most remarkable thing about DOJ’s brief is that its conclusion doesn't follow from its own explanation of the meaning of the term “emolument,” nor, for that matter, from any of DOJ’s analysis. To the contrary, DOJ’s account of the Clause, and of the meaning of the term “emolument,” actually demonstrates that the President is violating the Foreign Emoluments Clause, at least with respect to some of the conduct alleged in the CREW complaint.
GSA, Trump International Hotel, and the Constitution
Yesterday, the General Services Agency surprised experts by declaring that the Trump Hotel in D.C. is not in violation of its lease. But the GSA's decision itself might well violate the Domestic Emoluments Clause.
Conflict of Interest Isn’t a Game
When Trump makes claims about conflicts of interest without any reference to the applicable rules, he's just shooting squid ink.
New Hotel-Owner Plaintiff in CREW Emolument Lawsuit
Yesterday, CREW again amended its complaint alleging that President Trump has violated the Domestic and Foreign Emoluments Clauses of the U.S. Constitution. Notably, CREW added another plaintiff: Eric Goode, the owner of several famous hotels, restaurants, bars and event spaces in New York.
Announcing Our New Podcast: "Versus Trump"
Take Care is pleased to announce the release of "Versus Trump," a new, affiliated podcast about the ways that the Trump Administration is breaking the law—and what people are doing about it.
What It Means To Be Presidential: Litigating Positions
Jane Chong questioned whether the administration's “self-interested [legal] stance" in the cases about the emoluments clauses "is ... fundamentally at odds with the trust that the office [of the President] confers.” It's worth asking the same about the administration's litigating position on the scope of the injunction against the entry ban.
A New Front in the Emolument Wars
If the people of this nation want a president who acts unclouded by private financial benefits, they must step up and insist that their officials not pay illegal emoluments to Trump in the first place
States And The Emoluments Clause
In a new lawsuit, Maryland and D.C. allege that the President's violations of the Emoluments Clauses harm their sovereign, quasi-sovereign, and proprietary interests. Those interests get special solicitude in federal court.
What Alexander Hamilton Really Said
For good reason, nearly everyone agrees that the Foreign Emoluments Clause applies to the President. And the main contrary argument rests on a misreading of the historical record.
Emoluments and Justiciability
Zachary Clopton offers a new spin on questions of standing and justiciability at the heart of recent emoluments litigation.
Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle
Last week, Brianne Gorod strongly refuted the claim that Alexander Hamilton thought presidents are free to accept foreign emoluments. Her post sparked a bout of criticism on Twitter. But that criticism is weak even on its own limited terms—and should not obscure Brianne's vital contribution to a debate of surpassing national importance.
Asymmetric Geographical State Standing
The recent DC/Maryland emoluments case reflects a truth known to the Framers: jurisdictions geographically closer to the national capital would have a different relationship with federal power.
Mikhail’s Blackstone Breakthrough: Emoluments Meant Private Benefits
By Jed Shugerman: Trump’s lawyers have argued that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.” But recent research by John Mikhail into Blackstone's Commentaries shows that emoluments are not limited to “office related payments.”
Trump’s Foreign Emoluments: Another Fig Leaf Falls Away
Trump's widely-touted plan to comply with the Foreign Emoluments Clause has always been inadequate and riddled with tough questions. Now we have answers to some of those questions—and they confirm that Trump's hotel-related violations will persist unabated.
Will Trump’s Lawyers Rewrite and Invert the Emoluments Clause?
NYT has leaked one of DOJ's theories in the emoluments clause case: that this is a "political question." Any such argument, however, would be exceptionally weak as a matter of text, precedent, and purpose, and would completely invert the basic operation of the Foreign Emoluments Clause.
Two Thoughts on the Government's Motion to Dismiss in the CREW Emoluments Case
Here’s a brief note on two things that struck me on a quick read of the government’s motion to dismiss in CREW v. Trump, filed yesterday. The first is about Mississippi v. Johnson, which the government cites as limiting the power of courts to grant injunctions against the President. The second is about the government’s more general claim that the only proper relief for an emoluments violation is political rather than judicial.
Updates | The Week of April 24, 2017
This week, Leah Litman continued her series of posts on "standing" in the CREW emoluments lawsuit. Further conflicts of interests drew attention as the Trump Administration announced its tax plan.
Updates | The Week of June 12, 2017
President Trump is ushering in a kleptocracy, that's why he's being sued. So argues Joshua Matz in Take Care as the cases against President Trump's violations of the foreign and domestic emoluments clauses mount.
Updates | The Week of June 5, 2017
Allegations of impropriety under the Emoluments Clause continue to swirl around President Trump, particularly in response to recent announcements of new America-themed Trump hotels.
Updates | The Week of May 29, 2017
The CREW Emoluments Clause lawsuit added a New York hotel owner, and law professors argue that Blackstone interpreted "emolument" broadly.
Updates | The Week of April 3, 2017
President Trump has pledged to donate his first quarter salary to the National Park Service. States are considering regulating access to ballots based on financial disclosure.
Updates | The Week of March 20, 2017
While Judge Neil Gorsuch did not reveal his views on President Trump and the Emoluments Clause this week, we saw analysis both of President Trump's domestic emoluments and of former National Security Advisor Michael Flynn and the Foreign Emoluments Clause.
Updates | The Week of April 17, 2017
People across the country have protested demanding to see President Trump's tax returns. The CREW's emoluments suit has progressed with the addition of two new plaintiffs who have made the case stronger.
Updates | The Week of April 3, 2017
President Trump pledged to donate his first quarter salary to the National Park Service. Questions have arisen over whether states can regulate access to ballots based on financial disclosure.
Updates | The Week of August 21, 2017
President Trump’s brand is in decline following his sharply criticized remarks on violence in Charlottesville. Senator Blumenthal’s emoluments suit may suffer from too broad a reading of prohibited emoluments.
Updates | The Week of July 24, 2017
President Trump will likely violate the Domestic Emoluments Clause, if he hasn't already. And a construction a lawyer in West Palm Beach, Florida has filed another emoluments clause suit against the president.
Updates | The Week of July 10, 2017
While some argue that the President may accept gifts without running afoul of the Foreign Emoluments Clause, critics view this reading as inaccurate and ahistorical. Dismissing the Emoluments Clause litigation for lack of standing would deviate from separation-of-powers principles.