Scholars Have Emoluments Case Wrong, Trump Tells Court

WASHINGTON (CN) – Attorneys for the president urged a federal judge Monday to dismiss the emoluments clause challenge he faces from nearly 200 members of Congress, insisting that none of the arguments raised by rafts of legal historians, constitutional law scholars and others salvage the suit.

U.S. District Judge Emmet Sullivan had invited the Justice Department to file the response here after receiving seven friend-of-the-court briefs in the suit against President Donald Trump.

Led by Sen. Richard Blumenthal, a Connecticut Democrat, the 2017 complaint accuses Trump of neglecting to obtain permission from Congress before accepting prohibited emoluments — meaning payments, benefits or gifts — from foreign states.

In addition to legal scholars, the case has drawn input from former members of Congress, national security officials, ethics officials and experts on the U.S. Constitution’s separation-of-powers clause.

On Monday, Justice Department attorneys responded point by point to each of seven briefs, beginning with their argument that that the members of Congress lack standing.

The 35-page filing finds support for this position in Raines v. Byrd and two D.C. Circuit decisions that implemented this 1997 ruling from the U.S. Supreme Court. Raines, the brief explains, found that lawmakers lacked standing to challenge the constitutionality of a law that gave the president the authority to veto individual provisions in tax and spending bills without striking down the entire law.

Trump argues the emoluments clause does not guarantee members a right to vote on whether the president can accept a specific gift because the clause gives authority not to individual members but to the entire Congress, which is free to do nothing.

In addition, Trump argues, the door is not locked on Congress holding a vote on emoluments legislation in the future if the members bringing the challenge can convince their colleagues to do so.

“Accordingly, when an official fails to first seek congressional consent before accepting emoluments prohibited by the foreign emoluments clause, it only means that the official has violated the clause, not that each member of Congress automatically acquires a judicially cognizable personal stake to challenge the violation,” the brief states. “The violation does not itself deny any member the opportunity to vote.”

Trump also denied the arguments from a group of former lawmakers who said the president must ask Congress for authority before accepting any gifts from foreign officials. Trump says an “emolument” is distinctly different than a “present” because it carries the expectation of some benefit for the giver, while a present is giving “without price or exchange.”

As to the proper way to interpret the word emolument, Trump called the definition preferred by the historians and members of Congress “overbroad and unsupported by the historical record.”

Trump additionally asks the court to ignore, at least for now, whether the emoluments clause even applies to the president, a question raised by the Judicial Education Project and a legal scholar at Maynooth University in Ireland.

A hearing on Trump’s motion to dismiss is scheduled for June 7. Other emoluments challenges to Trump are pending in courts around the country, including in Maryland where a federal judge ruled this March that the case could advance.

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