Constitutional Conflict: Trump’s Battle with the Emoluments Clause

By: Kathryn Jakuback Burke

A mere three days into his presidency, Donald Trump was struck with a lawsuit that targeted his vast and complex corporate kingdom. The Citizens for Responsibility and Ethics (CREW) in Washington D.C. charged in their complaint, that the intersection of President Trump’s ascent to the presidency and his preexisting business interests creates a violation of the Foreign Emoluments Clause.

This clause, despite its recent presence in the media, is relatively untraversed legal territory and reflects grave concerns that the Framers had of a leader that could be swayed by foreign inducements. The plain text of the Emoluments Clause is prohibitive of any “Person holding any Office of Profit or Trust under [the United States]” accepting any “present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state….without the Consent of Congress.”1

Given the surprising lack of legal research on this area of the Constitution, the Civilian asked Professor Coenen, Constitutional law scholar, to weigh in.

“‘Emolument’ in this context equates to a ‘thing of value,’ Professor Coenen explained. “In other words, a monetary or nonmonetary contribution that the recipient regards as desirable. The clause was included in Article I to address concerns about foreign states buying and exercising outside influence over decision-making within the executive branch.”

In their complaint, CREW alleges that Donald Trump’s refusal to abandon his properties and business interests “poses a grave threat to the United States and its citizens.”2 CREW specifically listed violations in connection with transactions involving New York’s Trump Tower, Trump International Hotel,Washington D.C., and the television show “The Apprentice.”

The blustering thirty-seven page complaint details the injury this alleged violation has caused CREW and demands relief in the form of an injunction enjoining President Trump from violating the clause. CREW argues that Donald Trump’s violations of the Foreign Emoluments Clause “have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW’s ability to accomplish its mission.”3 This expenditure of resources, CREW claims, has impeded their mission of keeping the public informed.

The Administration’s attorneys remain adamant that the Constitution does not require the President to take action in regard to his business claims. “The so-called Emoluments Clause,” they claim “has never been interpreted…to apply to fair value exchanges that have absolutely nothing to do with an office holder.”4 Given the lack of guiding jurisprudence on the subject, President Trump’s attorneys may be entirely correct.

Professor Coenen speculated as to why the Emoluments Clause has not been contentious, historically speaking.

“My guess is that most prior presidents (and other executive officials) haven’t seen any upside to pushing the envelope on this issue, so there’s never arisen the opportunity for the courts to weigh in on the Emoluments Clause’s meaning.”

“It’s also worth noting,” Coenen continued, “that executive branch officials other than the president also have to comply with a variety of statutory conflict of interest restrictions. Most past presidents, I suspect, would have wanted to avoid transactions that might give rise to even the faintest suspicion of foreign influence. Trump just doesn’t seem to care about the politics of the issue.”

In addition to the lack of guidance from the courts, the CREW complaint faces another hurdle. “I suspect the CREW case will be dismissed for lack of Article III standing,” Professor Coenen explains.

For those of you who skipped that day in Con Law 1, Article III standing requires 1) injury in fact 2) causal nexus between conduct and injury 3) reasonable likelihood that injury will be redressed by favorable court decision.

“CREW’s theory of injury strikes me as too abstract and self-manufactured to suffice under current Supreme Court case law,” Coenen explained.

Professor Coenen noted that all is not lost for those seeking to raise an Emoluments Clause challenge.

“I’d note that other parties, such as business competitors with the Trump Organization, would have a stronger claim of standing than the CREW plaintiffs, so it’s quite possible that some court will get to the merits of the Emoluments Clause issue, even if not in this case.”