Trump’s DOJ Tries To Twist Emoluments Clause To Justify Robbing Us Blind (TWEETS)


Lost in the furor over Donald Trump’s firing of James Comey is that Trump committed an impeachable offense the minute he took office. For those who don’t know, Trump has been under fire for continuing to allow money from his extensive deals with foreign governments and state-owned businesses to flow into the Trump Organization bank account after taking office. On the face of it, this violates the “Emoluments Clause” of the Constitution. That provision, located in Article 1, section 9, bars federal officials from accepting gifts from foreign powers.

On paper, Trump turned over control of the Trump Organization to a trust overseen by his sons when he took office. However, he has made the poorest show of separating himself from his real estate interests. He still retains controlling interest in the Trump Organization, and therefore will still benefit from its foreign deals. Ethics experts from both parties contend that by doing this, Trump hasn’t even begun to comply with the Emoluments Clause. As a result, they say, he could not honestly take the oath of office.

The fight to hold Trump to account began literally as soon as Trump took office, with the launch of the “Impeach Trump Now” campaign. On January 23–Trump’s first official business day as president–Citizens for Ethics and Responsibility in Washington sued Trump, contending that foreign governments are trying to buy access to and favor with Trump by doing business with his properties. On Friday, the Justice Department filed a formal response, saying that the clause didn’t apply to a number of Trump transactions.


CREW argues that diplomats and other foreign officials have made a concerted effort to curry favor with Trump by spending money at his properties, such as the luxury hotel that he operates in the Old Post Office Pavilion, mere blocks from the White House. Since taking office, CREW says, the Trump International Hotel Washington has made a concerted effort to market itself to diplomats, and has Saudi and Kuwaiti money in its coffers.

They also flagged Trump’s deals to lease space at Trump Tower to the Industrial & Commercial Bank of China and the Abu Dhabi Tourism and Culture Authority. Later, CREW cited Trump’s trademark deals with China, as well as the General Services Administration to allow the Trump-controlled partnership that leases the Old Post Office Pavilion to continue running the hotel. The latter decision seemingly fell afoul of a provision in the lease forbidding government employees from having any interest in the hotel.

The Hollywood Reporter obtained a copy of the Justice Department’s response. Read it here. The government’s lawyers argue that the payments are “fair-market commercial transactions” that are not prohibited by the Emoluments Clause. The government also argues that there is no evidence “from the text or history of the clauses” that address a president’s “private business pursuits having nothing to do with his office or personal service to a foreign power.”

Translation: when the president funnels foreign money through his corporation, it’s not illegal. Andy Grewal, a law professor at the University of Iowa, isn’t buying this logic. In his analysis of the Justice Department’s brief, he thinks the government would have us believe that “the use of a corporation or other entity automatically shields the President from emoluments clause violations.” Au contraire, says Grewal. He notes that it is very possible for a transaction between a foreign government and a corporation to be an illegal emolument. For that reason, “the simple creation of a corporate entity” is not enough to exempt Trump from the Emoluments Clause.

Former Obama adviser Dan Pfeiffer noted another obvious problem with the Justice Department argument.

Steven Dennis of Bloomberg News saw the same problem.

So if Jeff Sessions and his team had their way, a foreign government or state-owned business could pay a president anything it wanted in order to gain influence with him–as long as it was “fair-market value.” This may be acceptable in the Third World. It should not be acceptable here.

The Justice Department’s other main argument is even more staggering–the courts do not have jurisdiction over emoluments violations, even when there is no doubt that a violation occurred. The Justice Department claims that any attempt to force Trump to divest his business interests would result in “prolonged litigation” that would prevent Trump from carrying out his presidential duties–thus violating the separation-of-powers doctrine. For that reason, the Justice Department claims that Congress, not the courts, should decide whether an emoluments violation occurred.


CREW chairman Norman Eisen, who has helped lead the effort to bring attention to Trump’s emoluments violations, was flabbergasted at this line from the Justice Department. He told The New York Times that this “remarkable assertion” ran counter to decades of precedent–and the Justice Department hadn’t made the case for why that precedent should be overturned.

One of Eisen’s colleagues, Laurence Tribe of Harvard Law, had a more succinct response.

Oh, to be a fly on the wall in that courtroom.

(featured image courtesy Gage Skidmore, available under a Creative Commons BY-SA license)

Darrell is a 30-something graduate of the University of North Carolina who considers himself a journalist of the old school. An attempt to turn him into a member of the religious right in college only succeeded in turning him into the religious right's worst nightmare--a charismatic Christian who is an unapologetic liberal. His desire to stand up for those who have been scared into silence only increased when he survived an abusive three-year marriage. You may know him on Daily Kos as Christian Dem in NC. Follow him on Twitter @DarrellLucus or connect with him on Facebook. Click here to buy Darrell a Mello Yello.