A lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW) claims President Donald Trump is violating the Foreign Emoluments Clause of the Constitution. Not only does CREW lack standing to bring the suit, but there is also virtually no constitutional basis for the claim.
Before Sen. Elizabeth Warren, D-Mass. (F, 18%) tweeted about it in December, almost no one had heard of the Foreign Emoluments Clause. Article I, Section 9, Clause 8 of the Constitution declares that:
“[N]o Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
As explained in The Heritage Guide to the Constitution, the Founders adopted this provision to prevent foreign powers from buying off U.S. foreign ministers and other office holders. They had seen such corrupt practices by monarchs like Louis XVI, who had a custom of giving expensive gifts to foreign diplomats who helped him get what he wanted.
CREW claims it is dedicated to fighting “abuses of the campaign finance, ethics, or tax rules.” However, the Center for Consumer Freedom notes that practically all its complaints are filed against Republican officials.
CREW’s latest suit claims that President Trump is violating this little-known provision whenever any foreign government official, agent, or instrument gives to any Trump business interest “anything of value … monetary or nonmonetary, regardless of whether it is given in exchange for goods or services, and regardless of whether it is part of a transaction at, above, or below market rates.” CREW seeks to unfairly punish President Trump for the same “sins” of the father of the nation, George Washington, and imperil many other government officers as well.
Here are three reasons why CREW’s claims border on the frivolous:
1. It is questionable whether the Emoluments Clause even applies to the president
CREW’s dubious claim that the president is bound by the Emoluments Clause has never been considered by a court, so there are no judicial precedents here. But the Constitution generally refrains from lumping him in with all other office holders. When applying a provision to him, it typically refers to the president by title — and the Emoluments Clause very pointedly does not refer to the president.
That is why the Impeachment Clause specifically provides that it applies to the “president, vice president and all civil officers of the United States.” If “officers” of the U.S. included the president, there would be no need for him to be separately listed.
Furthermore, it is the elected president who appoints the “officers” who are subject to the clause. Antonin Scalia, when he worked at the Justice Department, certainly agreed since he issued an opinion in 1974 pointing out that when the Constitution refers to an “officer,” “it invariably refers to someone other than the President or Vice President.” (That is why, for example, the conflict of interest rules in federal law do not apply to the president or vice president.)
As Seth Barrett Tillman, law lecturer at National University of Ireland Maynooth, explains, President Washington himself did not feel bound by the Clause because he knew that the Founders’ concern in drafting this provision was to prevent diplomatic officers, not the president, from being subject to foreign corruption.
It is also unhelpful to CREW’s claim that the Compensation Clause in Article 2, Section 1, Clause 7 (the second Emoluments Clause), says that the president “shall not receive within [the Period for which he shall have been elected] any other Emolument from the United States, or any of them,” but is silent as to kings, princes, and foreign states. As Prof. Ron Rotunda, one of the country’s leading constitutional and ethics experts points out, this provision forbids the president from receiving “emoluments” from state governments, yet no one suggests that it is a gift or a bribe “when a state official stays at a Trump hotel and pays at the going rate.”
Practicality also argues against CREW’s misinterpretation of the Constitution.
The Founders were well aware that foreign dignitaries always exchange gifts when they meet, so there would need to be a de minimis exception in the Emoluments Clause to avoid constant constitutional problems for the president, yet there is no such exception in the clause. The real problem the Founders were trying to resolve had to do with our overseas ambassadors, not the president. Since George Washington was not only our first president, but also the man who presided over the Constitutional Convention, his conclusion that the Emoluments Clause does not apply to the president might as well have been written into the text of the Constitution.
2. It does not apply to fair market value exchanges in the ordinary course of business
Virtually no one outside CREW argues that the Emoluments Clause applies to “anything of value,” including market rate exchanges. As veteran Supreme Court journalist Lyle Denniston asks, “If the Emoluments Clause is thought of, fundamentally, as a check upon outright bribery or blatant favoritism, why would foreign actions in the normal course of business be a violation?”
Professor Andy Grewal of the University of the Iowa School of Law argues: “If the Trump Hotel provides lodging services to foreign diplomats at a market rate, that economic arrangement would not come within the situations reached by the Emoluments Clause.” The clause was specifically designed to prohibit bribes and gifts, not every commercial transaction, trinket, or gewgaw.
3. CREW lacks standing to sue
But CREW has an even bigger problem: a lack of “standing.” Having the standing to bring a claim in federal court requires showing a specific, concrete injury — not just any beef with a politician. Here, the only injury the CREW lawyers claim is that they voluntarily investigated President Trump’s business interests and now seek to parlay that work into a harm that only a federal court can remedy. They assert that Trump’s supposed violation of the Constitution is injuring CREW “in the form of significant diversion and depletion of its time, resources, and efforts.”
But, as Justice Samuel Alito wrote in Clapper v. Amnesty International USA (2013), plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of the hypothetical future harm that is not certainly impending.” (That is like blaming the company that manufactures hammers when you purposefully hit yourself on the thumb with its product.)
Moreover, the Supreme Court has “repeatedly held that such a ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.”
Robert Kelner, a partner at the law firm of Covington & Burling (which now employs former Attorney General Eric Holder) told the Associated Press that CREW’s standing argument “barely passes the laugh test.”
If courts permit politically fueled academics to sue the president over such a limitless theory, will Trump hotel clerks or sommeliers serving Trump wine be forced to ask patrons with possible political ties to foreign countries, “Could I see a passport and any foreign agent documentation?”
Could any lawyer sue whichever government officials they do not like for such trivialities as accepting an award or because they receive reimbursement for travel costs associated with an overseas speaking event abroad, or because they buy stock in a foreign company that is a state-owned enterprise?
John Kennedy wrote “Profiles in Courage” before becoming president. Did he violate the Emoluments Clause when foreign government officials bought copies of it, as they surely did, in the days after his inauguration, to get a better idea of what type of president he would be?
Barack Obama earned $15.6 million off his books, $10.8 million of it while president. Copies of “The Audacity of Hope” are available in more than 20 languages. Were any of those translated books bought by any “foreign governments, agents, or instruments?”
Norman Eisen, one of the CREW lawyers suing President Trump, was a Special Counsel for Ethics and Government Reform under Obama. Was this “any transaction to any foreign government agent is unconstitutional” theory enforced by him for the last eight years? Not even George Washington would get a pass under CREW’s emoluments theory. The quite selective outrage shown by CREW is sufficient to impeach the merit of their argument.
More than anything else, it seems to be the start of a PR campaign against President Trump — a warning shot that signals more harassing lawsuits to come.
Obama and Trump aren’t the only authors and entrepreneurs to become president. Past presidents have afforded plenty of opportunities to “discover” unconstitutional “emoluments” under CREW’s theory — even if it’s just “peanuts.”
CREW ignores much of that history, along with Trump’s concessions to CREW’s concerns that is not legally required. Like Jimmy Carter who put his peanut farm and warehouse into a blind trust upon becoming president, Trump announced plans to form a blind trust in November. Forbes reports that the Obamas “bucked the trend” and “decided against using blind trusts.”
President Trump has even taken another step. According to attorneys at the law firm of Morgan, Lewis & Bockius LLP, “He will donate all profits from foreign governments’ patronage of his hotels and similar businesses during his presidential term to the U.S. Treasury.” Neither the Constitution nor any other federal law requires him to do so.
CREW’s lawsuit is deeply flawed. It flouts relevant facts and law and pushes an interpretation that reflects more selective moral outrage than sound legal theory. More than anything else, it seems to be the start of a PR campaign against President Trump — a warning shot that signals more harassing lawsuits to come.
This piece originally appeared in Conservative Review