RICHMOND, Va. (CN) – Of the many legal challenges President Donald Trump is facing, few have forced legal experts and historians to dig deep quite like claims that his private business dealings with foreign governments violate the Constitution.
At the heart of a dispute going before the Fourth Circuit on Tuesday are the so-called emoluments clauses, which prohibit the president from receiving gifts from foreign or state governments or officials while in office without congressional consent.
Maryland and Washington D.C., filed a lawsuit in June 2017 claiming the profits the Trump International Hotel receives from various government customers qualify as emoluments, and the president’s continued business ties are harming competing businesses and create an uncharted constitutional crisis.
The emoluments clauses have bubbled up in recent years, recently when President Barack Obama sought and received congressional approval to accept the Nobel Peace Prize in 2009.
Back in the 80s, President Ronald Reagan surrendered his retirement benefits from his term as governor of California to comply with the rules. Even President Jimmy Carter famously put his peanut farm into a trust to make sure the Carter family would not, in his words, “be affected financially from profits or losses of any of the farm operations.”
But Trump has bucked that trend. While he relinquished daily management of his sprawling business, he did not divest from or place his business interests into a truly blind trust. He has also not sought congressional consent for anything that would qualify as an emolument, such as foreign income from his properties.
The Justice Department tried to quash the case but U.S. District Judge Peter Messitte ruled last year that Maryland and Washington D.C., have standing to bring the challenge over the Trump International Hotel.
But the emoluments clauses have almost no precedent in U.S. courts, and trying to argue the case on either side will take some creative legal work
“You don’t want [the president] to be influenced by either a national, state or foreign entity… through monetary gain,” David Crockett, professor and chair of Trinity University’s political science department, said in a phone interview with Courthouse News.
Crockett, whose specialty is on presidential policy and constitutional history, said the founders included the emoluments clauses to avoid international and national influence upon elected and appointed officials, and while he could only speculate on the impact Trump’s business ties have had on his presidency, he said he understands where critics are coming from.
“What’s unique is this [president] has a business background with businesses in foreign countries… that was not true for other presidents,” he said.
Crockett said the founders were not often concerned about foreign influence given the secluded nature of the country for most of its founding years, and the language of the clauses offered a window through which foreign or domestic gifts could pass.
He pointed to sections that allow for gifts to be given with transparent, congressional approval.
“That gift must be reported, then everyone knows about its existence, whether it's appropriate or not,” he said.
Crockett said he is unsure of how judges might look to the Constitution when the president’s private lawyers defend him in the Fourth Circuit next week, but he’s pretty sure of the questions the case will raise.
“How do we understand these phrases when they apply to [Trump] in his private capacity as a businessman who is, at least through the campaign, making deals for his business?” the professor said. “Is it possible that [the business dealings] could have a corrupting influence on him as president?”
While Crockett and others ponder the philosophical reach of the emoluments clauses, the more legal-minded are nearly unanimous in their belief Trump is violating the law.