May 7, 2018

The Niskanen Center’s Amicus Brief in the Second Circuit in CREW v. Trump



The hardest part about describing the Emoluments Clause litigation around Donald Trump’s business conflicts is explaining what exactly “emolument”—one of the more obscure words in the Constitution—means. Here it is in a nutshell: an “emolument” (as intended when the Constitution was written), is “a salary, fee, or profit from employment or office” or “the returns arising from office or employment usually in the form of compensation or perquisites.

The Emoluments Clause (Article I, Section 9) reads, “No Title of Nobility shall be granted by the United 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.” Seems pretty straightforward: no federal official can take any “present” or “Emolument” from any foreign government without Congressional approval.

Or so it seemed, until Donald Trump came along and began using the Presidency to shill for his hotels and other properties. Foreign governments have responded, flocking to places like the Trump International Hotel on Pennsylvania Avenue, just down the street from the White House. In the words of one foreign diplomat, “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’”  And, to no one’s surprise, the Trump International created a new position: a “director of diplomatic sales” whose job title is perfectly self-explanatory.

You, and everyone else, can likely see the problem with this—with one notable exception, of course, being the President.  All of this is old news; I’m writing this now because Niskanen just submitted an amicus brief in one of the federal court cases seeking to curtail the president’s (quite literal) rent-seeking behavior.  

Bad behavior yields desperate legal defenses, and Trump’s Justice Department lawyers have come up with a doozy. Pace Special Counsels, the Justice Department has always catered to whoever is President, but this time they have outdone themselves.

Ignoring decades of their own formal opinions, DOJ has argued that the Emoluments Clause only applies to the President personally, but not to any of his (wholly-owned) business interests. You heard that right: the Constitution forbids the President from accepting an envelope stuffed with cash from a foreign government, but this does not apply to that government paying the President that same money via his corporate interests. And those payments don’t even have to have the veneer of “fair market value:” the Trump International could charge the Kuwaiti government $5 million a month for a broom closet and that’s perfectly constitutional. Niskanen’s brief takes the position that the people who drafted the Constitution, and the citizens who ratified it, would not think this argument worth the paper it was written on. Nor would they think much of either the Justice Department that made it, or the President on whose behalf they did so.