The U.S. Constitution includes a once-obscure provision known as the “Emoluments Clause.” As regular readers know, the law is pretty straightforward: U.S. officials are prohibited from receiving payments from foreign governments. Traditionally, this hasn’t been much of a problem for sitting American presidents – but with Donald Trump things are a little different.
After all, this president has refused to divest from his private-sector enterprises, which means he continues to personally profit from businesses that receive payments from foreign governments.
The problem isn’t theoretical: Saudi Arabia, for example, spent roughly $270,000 at Trump’s Washington hotel during one of the country’s lobbying campaigns last year. Some of that money benefited the president.
This legally dubious dynamic has been the target of multiple lawsuits, one of which, as of yesterday, is advancing in ways Trump won’t like. The New York Times reported:
A federal district judge in Washington ruled on Tuesday that congressional Democrats could proceed with a lawsuit claiming that President Trump was violating the Constitution by continuing to profit from his businesses while president.
The decision by Judge Emmet G. Sullivan of the United States District Court for the District of Columbia is at least a temporary victory for the president’s critics who assert that he is willfully flouting constitutional bans meant to restrict the ability of any federal official to accept financial benefits from foreign governments.
The specific question under consideration was whether the nearly 200 congressional Democrats who filed the case were right about a core question: does the Emoluments Clause apply to this kind of presidential private-sector venture? Sullivan said it does.
“The Court is persuaded that the text and structure of the Clause, together with the other uses of the term in the Constitution, support plaintiffs’ definition of ‘Emolument’ rather than that of the President,” the judge wrote.
The road ahead is far from clear. After all, there’s more than one legal challenge to the president’s business that’s ongoing, and while each one is testing a legal principle, they’re not all on the same track.
The case that’s the furthest along was filed by the attorneys general of D.C. and Maryland, though conservatives on the 4th Circuit Court of Appeals may soon derail that effort. In the meantime, the Justice Department will have to appeal yesterday’s ruling to the D.C. Circuit, which isn’t as conservative, and which is less likely to side with the president.
With the prospect of two appellate courts possibly ruling in different ways on the same question, the odds of the case reaching the Supreme Court improve.
The Times’ report added, “The consequences are potentially momentous. If either lawsuit moves ahead, Mr. Trump will be forced to disclose financial details of business operations that he has long fought to keep out of public view. If the Justice Department succeeds in stopping them, the president will be vindicated in his decision not to divorce himself from his business empire while in office.”