Bringing the emoluments clause to bear on Trump’s D.C. hotel
PRESIDENT TRUMP’S OWNERSHIP of a luxury hotel in Washington, located just a few blocks from the White House, stands out as an especially blatant invitation to corruption. Need a favor? What better way to butter up the notoriously unethical president before a meeting than to drop a few thousand dollars at his hotel, maybe topped off with a night out at its “acclaimed” steakhouse or sushi restaurants?
But there may yet be justice for other DC hotel owners, who suffer from the unfair competition, and for the public at large. A federal judge recently cleared the way for a lawsuit related to the hotel that not only might expose the president’s deepest financial secrets, but also clarify constitutional guardrails against corruption that the courts have never fully fleshed out — because, for 229 years, no president has been so determined to push the boundaries.
Many scholars and lawyers have argued since Trump took office that his continuing role in the Trump Organization (and attendant receipt of profits from that organization) violates both the domestic and foreign emoluments clauses of the Constitution, the latter of which provides that “no Person holding any Office of Profit or Trust under them [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 domestic clause is similar.)
The claim in this case is that Trump has been receiving emoluments in violation of the Constitution from representatives of foreign governments (and even state governments — there’s a cameo in the opinion by Governor Paul LePage of Maine) who visit the Trump property in Washington. A preliminary issue in the case is the constitutional meaning of “emolument” — a term the federal courts have had little occasion to address until now because prior presidents haven’t maintained private business empires during their time in office. The Department of Justice, representing the president, argued that the case should be dismissed because the term “emolument” should be understood to mean, narrowly, a payment to a public official in addition to his official salary, and thus that financial reward from Trump’s business would not be covered.
District Court Judge Peter J. Messitte in Maryland late last month issued a 52-page opinion that interpreted the text, original public meaning, and purpose of these dusty clauses and concluded, contrary to the Department of Justice’s argument, that “emoluments” are something with the “potential to unduly influence a public official,” a broad reading that gives legal life to the common-sense interpretation that representatives from, for example, Kuwait and Saudi Arabia (or Augusta), are not staying at the Trump Hotel for the room service but rather for the political influence they might gain by checking in.
For example, the court notes that LePage and his staff stayed at the Trump Hotel when they traveled to Washington on official business and met with the president in his official role. On one of these trips, with LePage at his side, Trump signed an executive order to review Obama administration action on national parks, an order LePage hoped would lead to the reversal of the designation of the Katahdin Woods and Waters National Monument (in the end, it didn’t).
The ruling allows the lawsuit, brought by the attorneys general of Maryland and the District of Columbia, to proceed to the discovery stage of litigation, where the plaintiffs can learn which countries have sent representatives to the hotel and how much they paid to do so. The attorneys may also seek Trump’s tax returns, which he has steadily refused to disclose.
The court’s decision, thoughtful and detailed in its analysis, is the right one. The president’s “cramped interpretation of the clause,” it noted, “would seem to create its own concerning redundancies within the Constitution” because it is “tantamount” to the definition of federal bribery, already mentioned in the Constitution as an impeachable offense. “[I]t seems highly unlikely that the Framers would have intended bribery to be both an impeachable offense and, at the same time, an activity Congress would consent to when a foreign government donor is involved.”
The next phase of this lawsuit may just make it possible for us to see and read things the president would rather we didn’t. And the case itself could establish a welcome precedent to constrain any future presidents who might be tempted to hustle some extra cash on the side.