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If you’ve glanced at the news lately, you’ve likely heard about a lawsuit recently filed by a watchdog organization alleging that President Donald Trump is violating the Constitution by accepting payments from foreign governments through his hotels and other businesses.

The group’s argument is based upon the little-known Emoluments Clause of the Constitution, which prohibits any federal office holder—including the president—from receiving financial benefits or titles from foreign governments or representatives:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

In short, the Emoluments Clause is designed to prevent foreign powers from influencing the actions of government officials. However, the applicability of the clause has never been tested, and is not well understood.

Despite the importance of the Emoluments Clause, most people don’t understand what it means.

The exact import of this clause has apparently never before been litigated, and most modern day Americans don’t even know what an emolument is. In this context, an emolument is simply the payment or compensation given in exchange for services or for holding an office. An emolument is not a kickback, but simply a payment given for any reason, even for normal legal trade.

Because of the widespread confusion about the meaning of the Emoluments Clause and the significance of the recent lawsuit, Craig Ashton and Tim Hodson spent some time on a recent episode of All Things Legal discussing the legal import of the matter:

Craig: “All right, so, the Emoluments Clause. I mean, I’ve never even really heard of this, and I went to law school.”

Tim: “Yeah, this is the first time I’d read about it as well.”

Craig: “We’ve never really had to worry about this until now. So, Alexander Hamilton has been in the news quite a bit with the amazing play/musical Hamilton. Unbelievable. Lin-Manuel Miranda, what a stud that guy is…

“So, Alexander Hamilton in the Federalist Paper #22 wrote about the Emoluments Clause, which is [Article I, Section 9, Clause 8] of the foundational document that all other laws flow from, because if a law is passed that is in conflict with the Constitution, it’s unconstitutional and does not apply. He said, quote:

“One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”

“So, Donald Trump, we don’t know really where his money comes from, or whether or not he’s got loans from foreign governments, or sovereign funds, right? Because he hasn’t given us his tax returns. But, because he has the hotel in Washington D.C., the federal building, the idea in the Emoluments Clause is that you can’t take things of value from foreign countries or foreign nationals—princes, etc., people that represent the government—because, perhaps, that financial benefit may tweak the way that you deal with these countries in a way that’s going to benefit them based upon a financial interaction that you had.”

Tim: “No matter how trivial the financial [interaction].”

Craig: “Think about this. What they’re saying now is, if you stay at his hotel at the same rate as anybody else pays, you know, where’s the harm in that? Well, let’s say a guy from Dubai comes in and says, ‘You know, I’ll have 30 bottles of Dom Perignon, give me all the caviar you’ve got, I’ll have every lobster that you have, runs up a $300,000 room service bill…”

Essentially, Trump’s hotel would become a means of laundering foreign money.

Craig: “The point is, there’s no way that Donald Trump would not find out that somebody spent $300,000 on room service, because his sons are running the hotel. And the issue becomes whether or not that will cloud his judgment.

“The Constitution says, look, we don’t even care, we don’t want to get to that point. You just can’t take anything, because we cannot run the risk that your judgment is being clouded.”

Tim: “It’s a zero tolerance policy. The guys who wrote the Constitution were… students of history. They reflected on all the republics and governments that came before them and tried to avoid the way those republics went down. And one of them is foreign corruption. It’s a zero tolerance policy, and it’s that way for a reason. Because it starts as, ‘Here’s a gift.’ It starts as room service. It starts as a donation to your charity. And it becomes, ‘Hey, I gave you that $300,000. You better not sanction me. You better open those trade routes.”

Craig: “Or, ‘Do you remember [when I spent that money at your hotel]?’ ‘Oh yeah yeah, I do remember that, and as a matter of fact, I was on the fence with this legislation, but now that you point that out, hey, let’s do it.’

“So, there’s a group called Citizens for Responsibility and Ethics in Washington. It’s called CREW, and it’s headed by Laurence Tribe, Norm Eisen, Richard Painter, Erwin Chemerinsky, and then a Mr. Gupta. Ultimately, really heavy hitters. These are people that are very well respected as basically legal scholars. They’re not really known for being political. They’re basically known for interpreting the Constitution and how that applies to the laws that we have. They’re usually pretty fair-minded, and they’re definitely very smart people.”

While these names likely don’t mean much to the typical member of the public, CREW’s legal team is something of a Who’s Who of constitutional law.

As mentioned by Craig, CREW’s legal team includes:

  • Erwin Chemerinsky, the dean and founder of UC Irvine’s School of Law, frequently appeared on TV as a commentator and legal interpreter during the O.J. Simpson trial, has argued several cases in front of the Supreme Court, and in recent history is the second-most cited American legal scholar in legal publications.
  • Norman Eisen, one of the cofounders of CREW, specializes in cases of complex financial fraud and was the Special Counsel for Ethics and Government Reform for the White House under Barack Obama, where he earned the nickname “Mr. No.”
  • Deepak Gupta, a Washington D.C. lawyer who specializes in litigating in front of the Supreme Court and appellate courts, who is perhaps best known for representing the family of Jose Rodriguez, a Mexican teenager shot and killed by a U.S. Border Patrol in 2012, and 31 former professional football players seeking compensation for traumatic brain injuries they suffered while playing in the NFL.
  • Richard Painter, who was the Associate Counsel to the President during the George W. Bush Administration, where he served as the chief ethics lawyer.
  • Laurence Tribe, a longtime professor of constitutional law at Harvard Law School, has argued three dozen cases in front of the U.S. Supreme Court—including Bush v. Gore—and counts among his former students President Barack Obama, Supreme Court justices John Roberts and Elena Kagan, Senator Ted Cruz, and Supreme Court nominee Merrick Garland. (Tribe co-authored a white paper published this week explaining his conclusion that Trump is violating the Emoluments Clause.)

CREW has fielded a noteworthy legal team to argue their legal case against Donald Trump, but do they have standing?

Craig: “So the issue becomes whether they have standing. Because you actually have to suffer some detriment before you can sue somebody. If your neighbor gets run over by a bus, you can’t sue on their behalf, because you didn’t get run over by the bus. The neighbor’s the one that’s got the standing.

“So what they’re saying at CREW is that they’re having to use extra resources because of all the calls they’re getting [regarding concerns about Trump’s] conflicts of interest, and they’re not [able to focus on the] other things that they do. There is some precedent, in 1982 [in Havens Realty Corp. v. Coleman], where the Supreme Court determined that because this one group was trying to root out discrimination in a housing setting, that they had to use some resources to root this out, and therefore because they were spending money on it, they did suffer some detriment and they had standing. So if they use that reasoning, then these guys may get to move forward.”

The chief goal of CREW in advancing their suit is to successfully subpoena Donald Trump’s tax returns.

Craig: “The important thing would be this: They are going to try to get Donald Trump’s tax returns with this cause of action. If he’s got loans from the Russian government, or the Chinese, I think we need to know that. If he owes a sovereign bank in China $300 million and he’s our president… that’s leverage. Period.

“If my bank says to me, ‘Hey Craig, by the way, we’re going to start looking at your mortgage, unless you do something,’ I’m probably going to consider that. Finances do carry weight on people’s decisions. They just do.”

Tim: “Money talks.”

Craig: “So, that’s what’s happening with the Emoluments Clause, to determine whether or not having all of these businesses—because he’s got hotels [and] golf courses in Scotland and Dubai, his name’s all over these places all over the world—whether or not that would violate the Emoluments Clause, in that he’s receiving any financial benefit from foreign countries or representatives. Which, the Constitution says, ‘It doesn’t matter. We believe you that you’re not being swayed, but it’s too important for our democracy… we can’t even risk that.”

Tim: “That’s why you’re supposed to get rid of all of your business holdings. There’s reasons for all this stuff when you go into office. It’s put there because [the sources of governmental corruption have] been studied, and they know why governments fall. It’s worked for two hundred and some-odd years.”

Craig: “What [Trump’s lawyers] say is, ‘Hey man, we’re just doing market prices for the rooms, what’s the harm there? We’re donating the profits to the U.S. Treasury…” Those arguments may prevail, who knows? I don’t know, but I think it’s a litigable issue, and I think the tax returns become relevant, because we really should know. This is a guy who’s representing all of us. And if he owes a lot of money to foreign governments, hey, we need to know that. That is relevant. And if he doesn’t, just show us the tax returns and we’ll move on to something else.

However, even if CREW fails to show standing, this won’t be the last we hear of the Emoluments Clause.

As Craig and Tim wrapped up the segment, Chris pointed out that, even if this lawsuit fails to go forward, this isn’t the last word on the matter:

“If [CREW’s lawsuit] doesn’t go forward, the ACLU has actually identified some hotel owners that have said that they are suffering right now because their occupancy has gone down, because people are going to the Trump properties and not to theirs, and they can demonstrate a downtick in income, and that would clearly be a financial detriment.”

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