The Trump administration is heading to court this week in two lawsuits charging that the president is violating the Constitution by profiting off of his hotels and other businesses while in office.
The cases revolve around the Constitution’s once-obscure emoluments clauses, which critics say President Trump has flouted, giving foreign diplomats an opening to curry favor with him by patronizing his businesses.
On Monday, a panel of judges on the D.C. Circuit Court of Appeals will hear oral arguments over whether members of Congress can sue the president for alleged emoluments violations, and on Thursday, the full 4th Circuit Court of Appeals will hear arguments over whether state attorneys general can bring their own case.
The high-stakes arguments come as the president is facing an impeachment inquiry in the House and as he has appealed to the Supreme Court to shield his financial documents in multiple lawsuits.
The Constitution’s Foreign Emoluments Clause was included in order to prevent corruption and foreign influence of the federal government. It says that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
Another provision known as the Domestic Emoluments Clause prohibits the president from receiving emoluments from any of the states.
The Foreign Emoluments Clause has encouraged many presidents to tread cautiously in accepting gifts from foreign entities. In 2009, former President Obama consulted the Department of Justice for legal advice on whether accepting the Nobel Peace Prize would violate the emoluments clauses. Former President Kennedy sought advice on whether accepting honorary Irish citizenship would be constitutional.
And every former president in recent history has opted to sell off their assets or place them in a blind trust upon taking office in order to avoid conflicts of interest, including those prohibited by the emoluments clauses.
But Trump has defiantly rejected such moves, placing his family in charge of his business interests while in office.
Concerns about the president mixing his official functions with business reemerged when, in October, he floated hosting the next Group of Seven summit with foreign leaders at his Trump National Doral Miami resort. Trump backed down from the plan but dismissed critics and what he called the “phony emoluments clause.”
The case involving Congress dates back to June 2017, five months after Trump was sworn in, when more than 200 House and Senate Democrats sued him in federal court and accused him of flouting the Constitution by profiting off of his hotels, which have been frequented by foreign dignitaries, without the “consent of Congress” that is required by the Foreign Emoluments Clause.
“Each day that passes, the nation’s highest officeholder is making critical foreign policy decisions under a cloud of potentially divided loyalty caused by his enrichment from foreign states. That is precisely what the Framers adopted the Foreign Emoluments Clause to prevent,” the lawmakers said in a court filing in October.
The D.C. and Maryland attorneys general also filed a lawsuit in June 2017 making similar arguments.
“President Trump’s continued ownership interest in a global business empire, which renders him deeply enmeshed with a legion of foreign and domestic government actors, violates the Constitution and calls into question the rule of law and the integrity of the country’s political system,” they wrote in their complaint.
“Whatever the sincerity of the persons involved, foreign and domestic officials are put in the position of considering whether offering benefits to businesses associated with the President is important to maintaining goodwill,” they added.
Both cases will have oral arguments this week before the D.C. Circuit Court of Appeals and 4th Circuit Court of Appeals, respectively. The lawmakers and attorneys general are fighting with Trump, who will be represented by the Department of Justice, over the question of whether they have standing to sue to enforce the emoluments clauses.
The courts need to grapple with that question partly because the judiciary has barely examined emoluments issues over the past 230 years, leaving plenty of open questions about what the provision means and what it covers.
Jessica Levinson, a professor at Loyola Law School in Los Angeles, said that it’s generally undisputed that the Foreign Emoluments Clause was designed as a sort of “constitutional anti-corruption code.”
“Outside of that very little is agreed upon,” she said. “Whoever was going to be the first to confront emoluments clause cases was going to have to grapple with the issue of [legal] standing.”
Among the open questions are how emoluments are defined, whether the term “Office of Profit or Trust” covers the president and of course whether Trump’s constellation of private businesses are violating the clause.
The Justice Department, which has moved to get both cases dismissed on the grounds that neither the attorneys general nor the lawmakers have standing to sue, has argued for a narrow definition of “emoluments” that would not cover normal transactions through Trump’s private businesses but rather explicit quid pro quo transactions.
“The text, structure, and history of the Constitution’s Emoluments Clauses demonstrate that the term ‘emolument’ therein refers only to compensation accepted from a foreign or domestic government for services rendered by an officer in either an official capacity or employment-type relationship,” the Justice Department said in a brief to the D.C. Circuit Court of Appeals in October.
Still, Levinson says the most important question at the moment is whether the emoluments questions can be fought over in a court of law.
“If all of the courts conclude that nobody has standing, then [Trump is] right; it is kind of phony,” she said.
“If there’s a constitutional provision and no one can sue to enforce a violation, then it’s kind of useless,” she added.