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.
Harold Hongju Koh, Sterling professor of international law at Yale Law School, pointed to specific examples of dealings between the Trump and China, Latin America and the Middle East as examples where his business interests could have already tainted his policy decisions as president.
Among possible gifts listed in the lawsuit is more than $250,000, reported under the Foreign Agents Registration Act, that was paid to Trump’s Washington hotel for lodging, parking and other services by the kingdom of Saudi Arabia leading up to the president’s inauguration.
A former State Department employee, Koh wrote in an amicus brief that his time as a government employee was spent “scrupulously avoid[ing] these sorts of private transactions with foreign governments, precisely because they would expose the U.S. to actual or perceived interference with U.S. national security and foreign policy.”
While Koh can only speculate on how Trump’s policy decisions could be influenced by foreign gifts, Maryland Attorney General Brian E. Frosh had to actually build the case, including finding a harmed party.
According to Frosh, Maryland’s private restaurants and business outside of Trump’s orbit are the victims.
“The president’s actions undermine the ability of the District and Maryland to pursue their governmental interests free of pressure to gain the president’s favor by patronizing his hotel,” he wrote in his appellate brief to the Fourth Circuit. “His actions injure the economic welfare of plaintiffs’ residents, whose businesses suffer a competitive disadvantage.”
In an amicus brief, Virginia Attorney General Mark Herring said the same applies to businesses in his state just south of the nation’s capital.
“Virginia’s hotels have already been on the losing end of diplomatic decisions to shift business to the Trump properties after the election,” he wrote. “Because of the Trump hotel’s proximity to Virginia’s hotels, restaurants, and convention centers, Virginia experiences many of the same competitive injuries alleged by Maryland and the District in their complaint.”
But the history of the emoluments clauses, and the lack of a previous legal challenge, has led to similarly creative arguments in support of President Trump.
Trump’s lawyers tried but failed to convince Judge Messitte that the states and businesses they represent don’t have standing to challenge the president on the issue, and the harm they believe they have experienced is too speculative.
“The framers designed those clauses to prevent corruption and to protect the president’s independence—not to protect the financial interests of private businesses that want to compete with the president’s commercial ventures,” wrote attorney Patrick Strawbridge with the Boston-based Consovoy McCarthy Park, which is defending Trump in the suit after it was refiled against him in his individual capacity.
Trump’s brief goes on to argue another point his supporters have echoed: Presidential immunity. According to Strawbridge, even if the court recognizes the harm being done, Trump’s role as president shields him from such lawsuits.
“Absolute immunity bars individual-capacity lawsuits against the president for the official actions he takes after assuming office,” the brief states. “That is precisely the kind of lawsuit that the court confronts here.”
Seth Barrett Tillman, an American and lecturer at Maynooth University in Ireland who submitted the sole amicus brief in support of the president, thinks the real issue lies with the earliest days of the case when the states challenged Trump in both his official and individual capacities.
“The oddity of the claim is it’s against Trump for what he was doing before he was president and now for basically the same activity while he’s president,” he said in a phone interview with Courthouse News.
“For the plaintiffs’ claim to work, it is not enough that they show that the president changed government policy in response to his having received a foreign government’s gift. Rather, plaintiffs have to show that Trump received or accepted the gift in consequence of some federal government policy or custom,” Tillman added. “The alleged wrong is the gift, but it’s not illegal unless taken in response to a government policy or custom.”
But Tillman also sees problems with the Trump team’s arguments questioning the ability of the courts to compel the president to do anything, let alone to order him to remove himself from his personal business interests. While it’s unclear whether courts have that authority, he doesn’t think they are eager to answer that question.
And if states want to force Trump out of his private businesses, he said Congress should pass a law.
Tillman also called the states’ claims a “novel” interpretation of 200-year-old language.
“They’re claiming they know exactly what it means and how it should be applied to the president and that the courts should order the president to do what the plaintiffs want,” he said.