Nonprofit Watchdog Files Lawsuit Challenging President on Emoluments

January 23, 2017; National Public Radio

On Monday, January 23^rd, following the presidential inauguration, the nonprofit group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against President Donald Trump with the Southern District Court of New York, alleging that President Trump is in violation of the Emoluments Clause of the U.S. Constitution.

The group claims that President Trump’s interest in Trump Tower, The Apprentice and its spinoffs, the Trump Hotel in Washington, D.C., and his financial obligations or involvements in China, India, the United Arab Emirates, Indonesia, Turkey, Scotland, the Philippines, Russia, Saudi Arabia, and Taiwan “pose a grave threat to the United States and its citizens.” Foreign diplomats are already moving their business to the D.C. Trump hotel.

CREW stated its motives for the lawsuit plainly:

As the Framers were aware, private financial interests can subtly sway even the most virtuous leaders, and entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic. The Foreign Emoluments Clause was forged of the Framers’ hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance.

The Constitution’s Emoluments Clause states, “No Person holding any Office of Profit or Trust under [the United States], 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.” The clause was a response to the fear of the framers that an elected official would be induced to act against the interests of their country. Alexander Hamilton wrote in Federalist 73 that the president “can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.”

CREW is joined in their suit by law professors from Harvard University, UC Irvine, and Fordham University, as well as lawyers from Gupta Wessler PLLC.

The plaintiffs have asked the District Court for a declaratory judgment (meaning a judgment without a trial), clarifying elements of the Emoluments Clause and affirming the violations committed by President Trump, as well as for relief for the burden placed upon CREW for filing the suit. They also requested “injunctive relief ordering Defendant to refrain from violating the Foreign Emoluments Clause,” meaning he would either need to resign the conflicting business interests or resign the presidency.

This lawsuit has been a long time coming; CREW warned before the inauguration that the president would be in violation of the Constitution the minute he took the oath, and NPQ expressed concern that the president-elect was not taking sufficient steps to resolve the problem.

Walter Shaub, Director of the U.S. Office of Government Ethics, told the Brookings Institution on January 11^th that Trump’s plan to resolve his conflicts of interest was insufficient. Trump announced that he would put his holdings in a “half-blind trust,” and leave the “leadership and management” of his business interests to his sons.

The country’s foremost ethics officer called the trust “not even halfway blind,” making the excellent point that with such a public asset and such close relations to the leadership, the president-elect could hardly avoid knowing the state of his business affairs. “Under that law anyone who wants a blind trust has to work with OGE from the start, but OGE has been left out of this process. We would have told them that this arrangement fails to meet the statutory requirements,” Shaub said. “Nothing short of divestiture will resolve these conflicts.”

President Trump has claimed that, as president, he “cannot have a conflict of interest.” Of course, based on the statements by the OGE, this is not true. It is only true if one fails to separate the man from the office he holds, uniting their interests and sidelining the interests of the American people. Conflating the interests of the president and the presidency is how leaders like Robert Mugabe and Vladimir Putin justify assembling crony cabinets that can ruin national economies.

Trump owes hundreds of millions of dollars in loans to the state-owned Bank of China and to Deutsche Bank. He has begun the process of resigning from his companies, but not of divesting.

Both the OGE director and the CREW plaintiffs have made plain that this is not a politically motivated lawsuit, but rather a genuine concern for the welfare of the American people. “Ethics has no party,” said Shaub. Hamilton wrote that “a power over a man’s support is a power over his will,” and OGE and CREW do not intend that any foreign or domestic power should have power over President Trump’s will.

Noah Bookbinder, CREW Executive Director and a former federal corruption prosecutor, said:

We always encourage officials to do the right thing. We did not want to get to this point. It was our hope that President Trump would take the necessary steps to avoid violating the Constitution before he took office. He did not. His constitutional violations are immediate and serious, so we were forced to take legal action.

The main goal of the suit is the declaratory judgment by the court that the president is indeed in violation of the Constitution. No action would be taken against the president, provided that he complied with the injunction; refusing to comply, and therefore remaining in violation of the Constitution as declared by a U.S. court of law, would be grounds for an impeachment lawsuit.

This will not be the only conflict of interest lawsuit that Trump faces; the ACLU has filed a Freedom of Information Act request for documents relating to conflicts of interest for their own suit. However, the District Court’s decision regarding a declaratory judgment will be a strong statement about the new president, his priorities, and his ability to govern.—Erin Rubin