President Trump, follow the Constitution
My colleagues and I have taken the extraordinary step of filing a federal lawsuit against President Donald Trump for his violations of the U.S. Constitution’s Foreign Emoluments Clause. Article I, Section 9 of the Constitution forbids federal officeholders, including the President, from accepting “any present, Emolument, Office, or Title of any kind whatever, from any King, Prince, or foreign state” without the consent of Congress.
The Framers included the Emoluments Clause in the Constitution because they were deeply concerned about foreign powers gaining influence over our leaders through the promise of personal financial gain. They feared that our experiment in self-government would fail if the American people could not be assured that their elected officials made decisions based on the best interests of the nation rather than the best interests of their pocketbooks. “[I]f we do not provide against corruption, our government will soon be at an end,” George Mason of Virginia warned in 1787.
At the Constitutional Convention in Philadelphia, the Framers debated for days how best to ensure the undivided loyalty of elected officials. “[N]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption,” Alexander Hamilton explained in the Federalist Papers. They eventually settled on the Emoluments Clause, which by its broad terms assumes that a financial benefit provided to a federal officeholder by a foreign power should be suspect and therefore subject to Congressional approval.
Since taking office, however, President Trump has refused to divest his business empire and has financially benefited from the actions of foreign powers that may be attempting to curry favor. To name but a few examples: The governments of China, the United Arab Emirates, and Saudi Arabia lease properties in Trump office buildings; China swiftly granted President Trump’s businesses 38 trademarks following the election, after the Trump Organization spent a decade litigating the issue in court to no avail. Trump International Hotel in Washington, D.C. actively courts foreign diplomats, some of whom have hosted events or stayed at his hotel since the Inauguration. In January 2017, a lobbying firm working for Saudi Arabia spent $270,000 on rooms and other expenses at President Trump’s Washington hotel after Inauguration Day.
As one Asian diplomat boasted to the Washington Post for a November article, “Why wouldn’t I stay at [Trump’s] Hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel,’” and another Middle Eastern diplomat acknowledged, “Believe me, all the delegations will go there.”
In January, President Trump’s attorney Sheri Dillon assured Americans that President Trump would “donate all profits from foreign government payments made to his hotels to the United States Treasury.” Nevertheless, in response to a request from the House Oversight Committee for documentation identifying foreign profits, the Trump Organization refused via a single glossy brochure to “fully and completely identify all patronage” because it would be “impractical.” Compounding the problem is the complete lack of transparency by the Administration or any form of oversight by the Majority in Congress. We learned that the “White House is telling federal agencies to blow off Democratic lawmakers oversight requests,” as Politico reported last month.
President Trump’s actions demonstrate that he has no plans to voluntarily submit to Congressional approval of his financial benefits derived from foreign governments. By failing to do this, the President violates one of the Constitution’s most critical anti-corruption commands, and deprives Congress of its constitutionally assigned role in assessing what financial benefits from foreign states the president may accept.
No elected officeholder may be above the law, especially if he or she claims to be the sole judge of his or her own integrity. The Framers reasoned that if Congress were to decide which financial benefits a president may receive, the chances of corruption and foreign influence would be diminished because each transaction would be open to public examination.
In deciding for himself what constitutes an emolument, President Trump is denying Congress its constitutional authority to grant – or withhold – its consent. And in our system of government, the judicial branch has the ultimate responsibility to interpret the Constitution, not the executive.
Congress alone cannot force President Trump to comply with the Constitution. In the face of his continued defiance, therefore, we and our colleagues must ask the courts to help enforce this critical anti-corruption provision in the Constitution and direct President Trump to do what the Constitution requires.
Our lawsuit is not just about protecting our institutional prerogative, but also to ensure that the Office of the President is not under any undue foreign influence. We owe this duty to uphold the Constitution to all Americans.