Lost in the cacophony of events that could potentially put an end to Donald Trump’s presidency, the possibility that he may have violated the Emoluments Clause—the constitutional clause that prevents presidents from accepting gifts from foreign governments—seems downright quaint. But a lawsuit filed by an ethics watchdog group, which the Trump administration has said it will attempt to dismiss, seems determined to push an Emoluments Clause case as far as it can go. On Wednesday, lawyers from the group and from the Trump administration laid out their respective cases before a federal judge in New York, the former arguing that the president is susceptible to foreign influence because of his many business ventures, and the latter arguing that Trump should be able to continue reaping the profits of his presidency.
Broadly speaking, the Emoluments Clause prevents officeholders from receiving compensation and gifts from foreign, federal, and state governments—a prohibition the Trump administration has flouted by hosting diplomats and party officials at the president's many properties. In the months since the election, Trump’s recently opened Trump International Hotel has transformed into Washington, D.C.’s de facto clearinghouse for foreign and domestic guests on government-related trips. Further complicating the matter is the fact that Trump refused to divest from his company when he took office, instead placing his holdings in a trust managed by his sons.
During oral arguments in a Manhattan federal court, the administration’s lawyers sought to define what counts as an emolument—a tricky distinction, as few precedents limiting the scope of emoluments exist. Trump's lawyers argued that the president would only be in violation of the clause if he received a personal benefit in exchange for something he would only be able to provide as president.
U.S. District Judge George Daniels questioned this definition. “Why doesn’t emolument mean compensation?” he reportedly asked, prompting Trump's lawyer to grudgingly agree that, yes, emoluments clauses could apply to private business transactions.
Deepak Gupta, a representative for Citizens for Responsible Ethics in Washington (CREW), defined emolument more broadly as a “profit, gain, or advantage.” He argued that Trump himself did not need to directly profit from government employees patronizing his businesses in order to violate the clause. Rather, he said, Trump was in violation any time money flowed directly from a government bank account, foreign or otherwise, into the Trump Organization’s coffers.
Although Daniels expressed interest in the organization’s argument, he suggested that perhaps CREW and its co-plaintiffs—restaurant-industry representatives who compete with Trump for similar patrons, and who argued that Trump's presidential status put them at a competitive disadvantage—didn’t have standing to press the legal challenge. In response, Gupta said, “What our clients can’t offer is the ability to curry favor with the president of the United States.”
Daniels is expected to hand down a ruling in 60 days, but anyone hoping for some judicially imposed schadenfreude may be disappointed: Daniels suggested that while he could declare that Trump was in violation of the Emoluments Clause, he himself had no legal authority to order the president to divest from his company. According to The Wall Street Journal, he instead floated the possibility of Congress ruling on the question, as it has the power to consent to emoluments. Which, as virtually any current observer of Congress is aware, means the case has about as much chance of proceeding as the Cassidy-Collins health-care bill.
