Emoluments lawsuit: Political maneuvering or a viable tactic?

At issue is the seldom-litigated Foreign Emoluments Clause, which the plaintiffs say President Trump began violating Friday upon taking the oath of office.

A watchdog group stacked with former White House ethics lawyers and constitutional scholars sued President Trump on Monday, accusing the billionaire businessman of violating the US Constitution by permitting his companies to continue accepting payments from foreign governments while he serves as commander-in-chief.

At issue is the seldom-litigated Foreign Emoluments Clause, which the plaintiffs say Mr. Trump began violating Friday upon taking the oath of office. Whether the clause, which restricts members of the government from receiving foreign gifts, applies to the president, however, has been hotly debated in recent weeks, as the American public wrestles with the unprecedented extent of Trump's potential conflicts of interest. Even those sympathetic to the plaintiffs' cause have raised concerns over the adequacy of their suit.

Norman Eisen, who served as chief White House ethics lawyer during former President Obama's first term and who chairs the Center for Responsibility and Ethics in Washington (CREW), which filed the suit, said one of the goals in taking Trump to court is to force him to disclose the details of his tax returns – records which the research and advocacy group argues could be used to investigate the newly inaugurated president's international business ties.

"Seventy-five percent of Americans want to see the President’s tax returns and so do we," Mr. Eisen said in a statement. "We will seek those in discovery in this case in order to establish the details of the emoluments clause violations here."

The complaint, which CREW filed in the US District Court for the Southern District of New York, alleges that Trump has violated and will continue to violate the emoluments clause through a number of business transactions, including the offering of office space, hotel rooms, and other venues in New York, Washington, and other cities to foreign government-owned entities. It asks the judge to declare that Trump is in violation and to order him to comply.

Although the lawsuit does not seek monetary damages, it has invigorated debate among some legal scholars who question CREW's basis for filing. Jonathan Adler, a law professor at Case Western Reserve University in Cleveland, critiqued the complaint in series of tweets Monday morning, describing it as an apparent public relations stunt. But that's not to say the suit is inappropriate, he clarified.

"This would hardly be the first time someone filed a lawsuit as a way of trying to draw public attention to something even though they knew the suit was a long-shot," Professor Adler tells The Christian Science Monitor in a phone interview Monday. "That’s a well-established practice."

Others critiqued the suit as a potential effort to grab Trump's tax documents by overriding his stalling tactics and objections. Rather than truly seeking to enforce the emoluments rules, the plaintiffs appear to be investigating whether Trump follows the norms of good governance, says Seth Barrett Tillman, a lecturer at the Maynooth University Department of Law in Kildare, Ireland.

"Whether that's right or wrong depends on how you feel about using – or manipulating, depending upon how you look at it – the litigation system," Mr. Tillman tells the Monitor in a phone interview Monday.

Tillman, who has repeatedly argued that CREW's legal scholars have misinterpreted the emoluments rules, says there are three big hurdles the plaintiffs will have to clear before a judge will seriously consider the substance of their complaint. If the government can convince the judge that (1) presidents are not subject to the Emoluments Clause, (2) the business transactions in question do not constitute emoluments, or (3) the plaintiffs lack standing to sue, then the case is likely to be dismissed.

Does the Emoluments Clause apply to presidents?

Tillman argued in a paper for the National Constitution Center that the emoluments rules were never intended to apply to the president. Only recently have legal academics sought "to rewrite the history of the Philadelphia Convention and our understanding of the Framers' original intentions," he wrote in a point-and-counterpoint argument with Zephyr Teachout, a Fordham law professor and one of the CREW lawyers who filed the suit against Trump.

Tillman bases his argument on two key facts. First, President George Washington accepted two diplomatic gifts without congressional approval, setting a precedent that suggests he had complied with the law as originally written. Second, when US Treasury Secretary Alexander Hamilton was asked to produce a list of everyone currently holding a US office, he spent nine months producing a 90-page report, and omitted the president and Congress, Tillman says.

Still, others have argued that the emoluments clause does apply to Trump. Eisen joined forces last month with former chief White House ethics lawyer Richard Painter, who served during former President George W. Bush's second term, and Harvard University law professor Laurence Tribe, to make their case in a paper for the Brookings Institution. 

"It is plain that a President Trump would be subject to removal from office for the intentional abuse of power that this manifestly unconstitutional intermingling of private and public concerns would entail," they wrote. "When this guillotine might fall is a matter of political more than legal calculation, and is thus beyond the scope of our analysis."

Can business transactions constitute emoluments?

During his first press conference after winning the election, Trump dispatched his attorney Sheri Dillon to unveil how the president would separate himself from his businesses, in a plan that was quickly denounced by the Office of Government Ethics. Ms. Dillon argued that the business transactions in question are not the sort of payments contemplated by the emoluments prohibition.

"No one would have thought when the Constitution was written that paying your hotel bill was an emolument," she said. "Instead, it would have been thought of as a value-for-value exchange; not a gift, not a title, and not an emolument."

Some legal analysts say her argument could hold water. Andy Grewal, a University of Iowa College of Law professor, authored an academic paper published last week arguing that the president could benefit financially from a foreign diplomat's business without necessarily doing anything inappropriate.

"When tourists and diplomats each pay the same room rate, or tourists and diplomats each pay the same amount for a slice of cheesecake at the Trump Tower Grill ($7), gains relate to the operation of a hotel or restaurant," Professor Grewal wrote.

If the president were to show favor to one business over another or charge a foreign diplomat more than regular ratepayers, then there could be reason for suspicion, Grewal noted.

Does CREW have standing to sue?

Whether the plaintiffs have legal standing to sue Trump could be the most likely hurdle to trip up their case, both Tillman and Adler say.

"Standing requires that you be able to show how you, in particular, were distinctly injured by the government action that you’re complaining about, and in this case, that’s hard for CREW to do," Adler says. "They’re basically arguing that they’re a group that cares about government ethics, and this is a big government ethics issue. And that’s typically not sufficient."

That could explain why the American Civil Liberties Union (ACLU) said it is looking for plaintiffs interested in filing suit against Trump on emoluments grounds – perhaps a hotel or bed-and-breakfast that had been injured by Trump's hotel business, as The New York Times reported.

"It would still be difficult for a variety of reasons, but it would be a stronger claim to standing than we have here," Adler says.

Professor Tribe, one of the CREW plaintiffs, said in a statement that "nothing short of judicial force will end Trump's flagrant disregard" for the ethical emoluments standard. Adler, however, contends that this case could find its way into the territory of "a non-justiciable political question," or a legal dispute in which the courts cannot intervene. At the very least, Trump's administration will argue as much, he says.

"Because we’re so used to litigating everything, we tend to think that if there’s a legal question it has to be resolvable in a court," Adler says. "But the reality is that there are legal questions – even constitutional questions – which we have to resolve through the political process. While the courts can answer lots of questions, they can’t answer all of them."