Donald Trump has flagrantly abused the power of his office to line his own pockets. Again.
Acting White House chief of staff Mick Mulvaney announced on Thursday that the president selected his own Trump Doral golf resort as the site of June’s G-7 summit. Heads of state and diplomats will congregate at his own property—which is in steep decline and needs extra business in June. The move ensures that other nations will spend millions of dollars housing hundreds of personnel at Trump’s resort, funneling money from foreign governments into the president’s business. There are myriad other potential locations, but Trump chose to award the contract to himself.
The president’s decision to exploit the G-7 summit for personal enrichment is so obviously corrupt, so shameless and extortionary, that it seems strange to debate whether it is also unlawful. And yet, from the start of Trump’s tenure, his opponents have struggled to find an effective line of legal attack against his self-dealing. Government watchdogs have sued him in federal court, but their efforts have stalled—in part because judges have struggled with the unprecedented nature of the offense: No other president has bilked his office for so much cash. It seems implausible that the Constitution would provide no mechanism to halt such brazen corruption. And yet, here we are, well more than halfway through Trump’s term, and the president’s heists are only getting more blatant. Can anything or anyone stop his raid on the public fisc?
One strategy, initiated shortly after Trump took office, has been to ask the federal judiciary to enforce the Constitution’s emoluments clauses. These provisions sound abstruse because nobody uses the word emolument in casual conversation. But the Framers intended it to mean a payment, gift, or service. The foreign emoluments clause bars any federal officeholder, including the president, from receiving an emolument from a foreign state without congressional approval. The domestic emoluments clause explicitly prohibits the president from receiving any emolument (beyond his official salary) from any state or the federal government. There’s no exception for congressional approval.
It is pretty apparent that Trump has repeatedly violated both clauses. For instance, foreign diplomats routinely stay at the Trump International Hotel in Washington, in part to curry favor with the president. By accepting payments at his own property from another government—without obtaining permission from Congress—Trump likely violated the foreign emoluments clause. Or consider the allegations that Trump directed the Air Force to stop at his Turnberry resort in Scotland. By funneling federal money into his property, Trump likely violated the domestic emoluments clause.
There isn’t anything especially complicated about this constitutional theory. Ample evidence indicates that the Framers intended the emoluments clauses to function as a safeguard against government corruption—and, in particular, foreign influence in affairs of state. But the numerous plaintiffs who’ve sued the president of accepting illegal emoluments keep getting tripped up on a preliminary roadblock. To successfully sue Trump for emoluments, these plaintiffs must prove they have standing, meaning they are actually injured by his actions. And it turns out to be quite difficult to prove that the president’s corruption negatively affects you in a concrete way.
There a few possible routes around this barricade. In September, the 2nd U.S. Circuit Court of Appeals ruled that hotels and restaurants competing with Trump’s properties had standing to sue. The court held that the plaintiffs had plausibly argued that they faced unfair competition from Trump, because foreign and domestic government employees patronize his business to earn his favor. In 2018, a federal judge ruled that members of Congress also had standing to sue, because they were denied the opportunity to approve Trump’s foreign emoluments. (That decision is on hold as it’s appealed.)
The District of Columbia and Maryland are also battling out their own emoluments suit. Their attorneys general argue that Trump’s D.C. hotel draws foreign and domestic government officials away from Maryland (which wants the tax revenue) and the D.C. convention center (which is taxpayer funded). A panel of judges for the 4th U.S. Circuit Court of Appeals found neither jurisdiction had standing, but the full court will reexamine its decision in December.
This litigation is not exactly flashy given that it is bogged down in the arcana of a boring legal doctrine. Nor is the potential remedy all that clear. Trump could be ordered to divest from his businesses or put them in a genuinely blind trust. He would not profit so directly—but his name would remain on the buildings, and those seeking to help out his business for unscrupulous purposes could still do so with ease. The plaintiffs may be less focused on this ultimate remedy and more intent on gaining access to the finances and inner workings of the president’s business empire during discovery.
I think that, at a minimum, the D.C. and Maryland plaintiffs have made a strong argument for standing and should prevail on the merits. But I am increasingly skeptical that emoluments litigation is sufficient to address the magnitude of Trump’s crimes. There are real limits on the judiciary’s ability to counteract presidential misconduct. A court could certainly demand divestment—but it is virtually inconceivable that, for example, any judge would block Trump’s award of the G-7 summit to his Doral resort. The president’s emoluments violations strike at the heart of the Constitution’s protections against executive malfeasance. Yet the courts are ill-equipped to redress Trump’s seemingly endless abuses of office. Using the emoluments clauses to attack the president’s conflicts of interest can feel like fending off a grizzly bear with a badminton racket. It’s better than nothing if it’s the only tool you have. But you’ll probably still get eaten.
No court is going to strip Trump’s ownership of his businesses. No court will force him to give up the cash he has earned from foreign states, or compel Congress to take a vote on his emoluments. The crimes here may be of constitutional nature, but the ideal remedy is political: ejecting Trump from office. That’s why my colleague Jeremy Stahl has urged the House of Representatives to include articles of impeachment that cite Trump’s emolument violations. If Democrats take no action over the Doral outrage, they will only contribute to the feeling of powerlessness that threatens to paralyze the country.
Rep. Jamie Raskin, a Democratic member of the House Oversight and Judiciary committees, told the Washington Post that the House may pass a resolution disapproving the Doral contract. If Trump refuses to relocate the summit, Raskin said, representatives may consider investigating the deal and adding emoluments to their articles of impeachment. That move would be wise both legally and politically, allowing the House to fulfill its constitutional duties while correctly accusing the president of disregarding his own.
Trump’s lawyers, as well as the Department of Justice, have argued that courts cannot prevent the executive from profiting off the presidency. That leaves just one avenue of relief: impeaching Trump and removing him from office. If the Doral disaster doesn’t spur House Democrats to prioritize Trump’s graft in their impeachment inquiry, it’s hard to see what will.
Correction, Oct. 17, 2019: Due to a photo provider error, the caption originally misspelled Fort Worth as Forth Worth.