A government watchdog group sued President Donald Trump in federal court Monday, alleging that his business dealings violate the U.S. Constitution’s ban on federal officials’ receiving payments from foreign governments.
Citizens for Responsibility and Ethics in Washington said in a complaint filed in federal court in New York that Trump, who has retained his ownership stake in his businesses, violated the provision, known as the emoluments clause, in several ways. These include a lease with the state-owned Industrial & Commercial Bank of China in Trump Tower, bookings by foreign diplomats at Trump’s Washington hotel and payments from broadcasters owned by foreign governments for airing his television show “The Apprentice.”
CREW is asking a judge to halt the transactions. “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,” according to the complaint.
White House Press Secretary Sean Spicer referred comment on the lawsuit to Trump’s attorneys at Morgan, Lewis & Bockius, who have said the emoluments clause does not apply to the arms-length transactions in which the president’s businesses engage. A spokeswoman for Morgan Lewis, Natalie Gewargis, declined to comment on client matters.
The lawsuit centers on a section of the U.S. Constitution that hasn’t received much scholarly attention and has given rise to little or no case law, raising questions about how any litigation will proceed. U.S. law requires parties in a lawsuit be closely connected to the injury they allege, not just unhappy about it. CREW, which has worked with prominent Hillary Clinton fundraisers, claims it can sue because Trump’s alleged violations have caused “significant diversion and depletion of its time, resources, and efforts” focused on other government transparency initiatives.
Its complaint cites a 1982 Supreme Court decision in which a housing-access group was said to have standing to sue under the Fair Housing Act because its investigations of violations drained resources from counseling activities.
That 1982 case “doesn’t help” the group because there’s no statute to contend with, only a constitutional provision, according to Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “CREW’s injury is self-inflicted,” said Blackman, who noted recent Supreme Court decisions that have backed off the 1982 holding. “It chose, on its own accord, to investigate Trump’s business interests.”
CREW also lodged an administrative complaint with the government within minutes of Trump becoming president on a separate issue related to the Washington hotel. That letter said Trump was violating his lease with the government on a former post office that houses the hotel, because that contract bars elected officials from taking part. Trump and his lawyers say that lease provision doesn’t apply because when he signed it, he was a private citizen.
In the lawsuit filed Monday, Harvard Law School professor Laurence Tribe and others are joining CREW board members Norman Eisen and Richard Painter, who served as top ethics officials to Presidents Barack Obama and George W. Bush, respectively.
The emoluments clause declares that “no Person holding any Office of Profit or Trust” in the U.S. “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.”
Trump announced Jan. 11 that he will maintain ownership in more than 500 companies with $3.6 billion in assets while leaving day-to-day operations to two of his sons and a trustee. Although ethicists criticized the arrangement as falling short of the blind trusts set up by recent former presidents, Trump said he was doing more than he needed to do and noted that an ethics law that applies to most executive branch officials exempts the president.
“By law the president has no conflicts,” Spicer, the press secretary, said in an e-mail to Bloomberg.
The emoluments clause has emerged as a focal point in the discussion of Trump’s potential conflicts of interest, largely because of the assertions of Painter and Eisen that Trump would be in violation when he took the oath of office as president on Jan. 20.
The Supreme Court has never issued any rulings on the previously little-referenced provision, however, and questions remain about its applicability.
Congress, which is controlled by Republicans, has the clearest claim on enforcing the law, largely by employing its usual levers, several legal experts have said. Lawmakers could enact legislation that clarifies penalties, investigate alleged violations or even impeach Trump if they found wrongdoing — although such moves would almost certainly disrupt the ambitious agenda Republicans want to pursue under the newly unified government.
“The emoluments clause, like so much of the Constitution, is best enforced through the political process — which, in this case, seems unlikely,” Stephen Vladeck, a professor at the University of Texas at Austin’s law school, wrote in an e-mail.
Lawyers are also currently debating the exact meaning of “emoluments,” which had various definitions at the time the Constitution was written. Possible definitions are as diverse as gifts, salaries, transactions, generalized benefits, bribes and official offices.
Some scholars have even suggested the clause doesn’t apply to the president, but rather to the officers such as ambassadors, who most often received gifts from foreign governments in the founding era.
“When anyone tells you what this clause means in concrete terms, it’s not true,” said Seth Barrett Tillman, a law professor at Maynooth University in Ireland, one of the few scholars to have studied the clause before Trump’s election. “We’re all scrambling in the dark.”
The case is Citizens for Responsibility and Ethics in Washington v. Trump, 17-cv-458, U.S. District Court, Southern District of New York (Manhattan).