Friday, July 27, 2018

Trump putting Trump First Leads to Trump’s Emoluments Trap

Trump's emoluments, foreign and domestic

Trump’s Emoluments Trap is what the authors of an emoluments law suit call Trump’s business dealings. (I call it profiting from the presidency.) Here are snippets augmenting my post from yesterday.

On Wednesday, a federal district court made history. Judge Peter J. Messitte of Maryland allowed a lawsuit to move forward against President Trump, alleging that he is violating the Constitution by continuing to do business with foreign and domestic governments. In doing so, he became the first federal judge ever to rule on the meaning of the word “emolument” in the Constitution.

Coverage of the lawsuit, which was brought by two of us (with the third, Mr. Eisen, among the co-counsels), has sometimes cast doubt on the usefulness of the Emoluments Clauses, which we have argued forbid presidents from using their office to “profit, gain or advantage.” Critics have noted how rarely they have been deployed. That’s why Judge Messitte’s ruling is so important: It opens a path to enforcement of the ethics regime that the framers developed as a bulwark against corruption in the highest office in the land.

The decision could not be more timely. As our suit makes clear, the head of the executive branch of our government is more embroiled in commercial activities, from his hotel near the White House to business deals half a world away, than any president in American history.

By ruling that the word “emolument” in these clauses [of the constitution] means “profit,” “gain” or “advantage” in essentially any form from a foreign or domestic government, Judge Messitte has correctly found a way to enforce the framers’ anti-corruption mechanism. The framers understood the potential corrosive influence of commercial profit in the executive and wrote the Constitution “against a background of profound concern” regarding “possible foreign influence upon the president (and, to be sure, upon other federal officials),” as Judge Messitte noted. They designed the Emoluments Clauses as a prophylactic measure to prevent actual corruption and the specter of corruption — where a foreign power (or a domestic government) buys favorable policy decisions by engaging with the head of the executive branch commercially, outside the normal avenues of state.

Whether or not the president has actually been corrupted in such a way, his actions in violation of the clauses have raised widespread concern and the perception at home and abroad that he can be bought. This is why our jurisdictions came to the conclusion that the only avenue for protecting our citizens was to bring this lawsuit …

This ruling represents a major leap forward in understanding how Mr. Trump and his family are profiting off the presidency. The court has already ordered the preservation of Mr. Trump’s business records. We plan to examine them expeditiously and carefully when our lawsuit enters the discovery phase to uncover the extent of Mr. Trump’s violations through his Washington, D.C., hotel, where an endless retinue of foreign and domestic governments have spent lavish amounts of money since the election, all to the president’s financial benefit. …

Wednesday’s ruling was not the last in this case, but the decision has instant ramifications far beyond the District of Columbia and Maryland. By ruling that the term “emoluments” means, and that the founders intended it to mean, profit, gain or advantage, we know that other instances of profit, gain or advantage that Mr. Trump receives from foreign or domestic governments, even if not the subject of this lawsuit, violate the Constitution. Other plaintiffs may be able to challenge them. Mr. Trump apparently agrees that other government officials should not “monetize their public service” — which is why he is threatening to revoke the security clearances of some of his critics. We should apply the same standard to him.

By rejecting the president’s argument that the Emoluments Clauses merely prohibit the outright bribing of federal officials, Judge Messitte recognized that the framers of our Constitution created a powerful safeguard against corruption that was “intended to embrace and ban anything more than de minimis profit, gain or advantage offered to a public official in his private capacity as well, wholly apart from his official salary.” We intend to follow this constitutional path and bring to light the president’s commercial entanglements that have remained hidden for too long. It is our constitutional duty to protect our citizens from the harms Mr. Trump is causing by his violations of the Constitution — and to help safeguard our country from undue influence, foreign and domestic.

The authors are Karl A. Racine, Brian E. Frosh and Norman L. Eisen. Mr. Racine is the attorney general for the District of Columbia. Mr. Frosh is the attorney general for Maryland. Mr. Eisen is the chairman of Citizens for Responsibility and Ethics in Washington.

Other sources of reporting on the emolument law suit

For a history of how our leaders and legislators have treated presidential emoluments, see Move over, Trump. This president’s two lions set off the greatest emoluments debate.

AZBlueMeanie comments on the suit and ruling in Emoluments Clause case can proceed to discovery.

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