We are part of the legal team that sued President Donald Trump, on January 23, for violating the Constitution. We did so not for partisan reasons, but to affirm the most basic aspect of the rule of law: No one, not even the president, is above the law. From the first moments of his presidency, Donald Trump has been violating an important constitutional provision: the foreign emoluments clause, which prevents a government official from benefiting personally from a foreign government.
Article I, section 9, of the Constitution states: “And no Person holding any Office of Profit or Trust under them, 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.”
This provision was meant to restrict the ability of foreign governments to influence American officeholders. The world “emolument” may sound archaic, but the goal of the clause is clear. And it’s as important today as it was two and a half centuries ago: It helps to prevent the reality and the appearance of conflicts of interest that both distract our officials and undermine public confidence in the integrity of their decisions, which ought to be made in the sole interest of the American people.
As Virginia Gov. Edmund Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.” The clause was deliberately designed to be much broader than a prohibition on what we now think of as bribery; it forbids a federal officeholder from receiving anything of value from a foreign country, even if no pay-to-play scheme can be demonstrated.
No quid pro quo need exist for a foreign emolument to the American president to violate the Constitution. On the contrary, the clause flatly forbids receiving a benefit “of any kind whatever” from a foreign state.
Presidents are not immune from the emolument clause’s restrictions
The clause applies to all who hold “office” in the United States government. The Office of Legal Counsel of the Department of Justice explicitly has declared in ruling on payments and gifts to past presidents that this includes the president. It would be absurd for the highest official of all to be exempt from this basic limitation, given its sweeping language and its objective of ensuring undivided loyalty in government decision-making.
Trump’s businesses inevitably will attract foreign governments as customers, as lenders, or as regulatory benefactors. Governments will ordinarily want to please the president of the United States with respect to something he obviously cares a lot about: his wealth and that of his family. Every time Trump reaps economic benefits from a foreign government in the rental of facilities or rooms, or from the licensing of his brand, or of his entertainment products, or from the easing of restrictions that might otherwise limit his expansion of an existing project or his addition of a new one, he is violating the foreign emoluments clause.
Just since his election, Trump and his children have engaged in business negotiations with foreign governments, including India, the Philippines, Japan, and Scotland. After the election, Trump and his children met with Indian business partners who are building a Trump-branded luxury apartment complex south of Mumbai. It was widely reported that Trump lobbied a British political ally to oppose wind farms because he thought they might ruin the view from his golf course in Aberdeen, Scotland.
A bank owned by the government of China is a tenant in Trump Tower, and its lease will come up for renewal during Trump’s first term. Might the bank not be inclined to seek terms that curry favor from the powerful landlord? As a recent report from the Brookings Institution concluded: “The bottom line is simple: Mr. Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign governments and their agents.
Foreign dignitaries are already seeking out the Trump International Hotel in DC
In what has become the best-known example of Trump’s tangled financial and political interests, Trump owns Trump International Hotel, DC, on the site of the Old Post Office in Washington, DC. In 2012, Trump beat out proposals from hotel chains including Hilton, Hyatt, and Marriott and signed a 60-year lease with the General Service Administration. Unlike many of his holdings which are owned by corporations, Trump himself is the majority owner in this hotel.
The Washington Post reports that, according to the financial disclosure form he filed with the Federal Election Commission, Trump owns 76.725 percent of the DC hotel project. Three of his children, Donald Jr., Ivanka, and Eric, each have 7.425 percent of the project. Already there are reports of foreign governments housing dignitaries and holding receptions at the Trump hotel, unquestionably providing benefits in violation of the clause.
Nor are the harms inflicted by Trump’s ongoing constitutional violations solely economic in character. When workers at non-Trump hotels lose jobs because of the unlawful and unfair privileges Trump’s competing properties receive from foreign governments eager to grease his palm, they lose not only money but personal dignity. When foreign students in American universities cannot return from trips abroad without encountering new obstacles devised by the Trump administration, they have every reason to wonder whether their lives have been upended because their nation of origin, though not the source of any terrorist attack on American soil, was blacklisted in part because its leaders do not do business with Trump. (None of the Muslim-majority countries where Trump has business dealings were placed on the countries-of-concern list.)
Trump’s plan to “donate profits” would not solve the problem (even if he followed through)
Unfortunately, President Trump has yet to realize the magnitude of this constitutional problem or deal with it. In fact, Trump has declared: “I can be president of the United States and run my business 100 percent, sign checks on my business.” Trump also has said, “The law is totally on my side, meaning, the president can’t have a conflict of interest.” That, of course, is simply false, because of the emoluments clause.
At a press conference two days before his inauguration, Trump said that he had solved the problem of the emoluments clause by promising to donate the “profits that flowed from foreign governments staying at his hotels to the United States Treasury. He notably did not promise to donate the value of any benefits flowing from foreign governments to his multiple overseas projects, to Trump Tower in New York City, or royalties from The Apprentice.
But even just in terms of his hotels, this completely misses the point: Once Trump receives benefits from a foreign country, he has violated the Emoluments Clause no matter what he chooses to do with those benefits, including using them to bolster his image as a generous charitable donor. Moreover, it is unclear what “profits” might even mean here. Every time a foreign government or its officials patronize a Trump hotel or club rather than an alternative, Trump has benefited, at least in enhanced brand value.
Moreover, there is reason to be skeptical of this profit-donating promise in light of Trump’s total lack of transparency. At the same press conference, Trump again refused to reveal his tax returns and declared that the American people do not care about them. A promise to turn over profits is meaningless without a detailed method of accounting, which would require, among other things, access to his tax returns.
At the press conference, Trump’s lawyer made a novel legal claim: that the emoluments clause does not apply if he benefits only through a “fair market value transaction.” This is incorrect. It is incompatible with the purpose of the clause, as well as the meaning of “emoluments” at the time the Constitution was written. So long as Trump benefits, say by making any profit or even renting a room or facility that otherwise might be vacant at that time, he is violating the Constitution.
Citizens for Responsibility and Ethics in Washington (CREW), a public interest organization, filed this lawsuit in federal court in New York. It does not seek money damages, but rather a declaratory judgment from the court that President Trump is acting unconstitutionally and an injunction to require him to comply with the Constitution.
The question of “standing” is tricky, but our client has it
Questions have been raised in the media about CREW’s standing to sue in federal court. But the law is clear that an organization may sue, in circumstances like this, where it is injured by illegal practices that cause it to divert resources and efforts from other activities in which it had been engaged.
For example, in Havens Realty v. Coleman (1982), the United States Supreme Court held that an organization devoted to racial equality in housing had standing to sue to challenge illegal discrimination because the defendant’s conduct caused it to divert resources that otherwise could be used for other equality-advancing projects. The Court explained that “[s]uch concrete and demonstrable injury to the organization's activities — with the consequent drain on the organization's resources — constitutes far more than simply a setback to the organization's abstract social interests” and thus are sufficient for standing.
Although Congress has the theoretical power to give its consent to an otherwise unconstitutional foreign emolument, the odds that it would do so when it can simply dodge the issue by doing nothing are vanishingly low. But two offenses expressly made impeachable by the Constitution that should at some point focus the president’s attention: there are private parties injured by the payments the president is improperly receiving from foreign governments without congressional consent who have standing to sue him in his official capacity, and there’s the looming possibility of impeachment for an abuse of power that is just short of bribery and treason.
But we hope it will not come to that. Our hope, rather, is that the president of the United States will realize the seriousness of his constitutional violation and take immediate steps to comply with the law. Failing that, we are confident that the federal courts will play their central role in enforcing the Constitution.
Erwin Chemerinsky is dean and Raymond Pryke Professor of First Amendment law, at the University of California, Irvine School of Law. His latest book is Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable (Yale University Press 2017).
Zephyr Teachout is an associate law professor at Fordham Law School, and author of Corruption in America: From Benjamin Franklin's Snuffbox to Citizens United (Harvard 2014). On Twitter: @ZephyrTeachout
Laurence H. Tribe is the Carl M. Loeb University Professor and professor of constitutional law at Harvard Law School. He is the author of numerous books, most recently Uncertain Justice: The Roberts Court and the Constitution (Henry Holt 2014; with Joshua Matz). On Twitter: @Tribelaw.
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