On Jan. 23, Grandbetting I was one of several lawyers who filed a lawsuit against President Donald Trump for violating the “Emoluments Clause” of the Constitution. I am part of this lawsuit because President Trump is clearly violating the Constitution and I believe that the most basic aspect of the rule of law is that no one, not even the president of the United States, is above the law.
The Emoluments Clause prevents a government official from benefiting from a foreign government. Article I, section 9, of the Constitution states: “And no Person holding any Office of Profit or Trust under them, 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.”
This provision was meant to restrict the ability of foreign governments to influence American officeholders, a matter of great concern to a new nation. The clause is meant to be much broader than a prohibition of bribery; it forbids a federal officeholder from receiving anything of value from a foreign country. As Edmunds Jennings Randolph said in 1787, “This restriction is provided to prevent corruption.”
The Emoluments Clause applies to all who hold “office” in the U.S. government. The Office of Legal Counsel of the Department of Justice explicitly has declared that this includes the president of the United States. The clause prohibits receipt of benefits “of any kind whatever.”
Trump’s international business holdings mean that foreign governments frequently may provide him benefits — whether out of a desire to curry favor with the president of the United States or otherwise — which will violate the Emoluments Clause. Just since his election, there have been instances of Trump and his children engaged in business negotiations with foreign governments, including India, Philippines, Japan and Scotland. For example, it was widely reported that Trump lobbied a British political ally to oppose wind farms because they might ruin the view from his golf course in Aberdeen, Scotland. A report of the Brookings Institution concluded: “The bottom line is simple: Mr. Trump stands to benefit personally, in innumerable and largely hidden ways, from decisions made every day by foreign governments and their agents.”
To pick just one example, Trump is the owner of Trump International Hotel, D.C. on the site of the Old Post Office in Washington, D.C. In 2012, Trump beat out proposals from hotel chains including Hilton, Hyatt and Marriott, and signed a 60-year lease with the General Services Administration.
Trump himself is the majority owner in this hotel. His ownership violates both the terms of his lease and the Emoluments Clause of the Constitution. Trump’s ownership violates the lease which contains a provision that says no U.S. official “shall be admitted to any share or part of this Lease or to any benefit that may arise therefrom.” As president, Trump oversees the General Services Administration and Trump, as owner of the building, is leasing property from the GSA.
Moreover, Trump’s ownership of the hotel violates the Emoluments Clause. Already there are reports of foreign governments housing dignitaries and holding receptions at the Trump hotel. Trump will benefit from this, which violates the Emoluments Clause.
At a press conference before his inauguration, Trump said that he had solved the problem by promising to donate “profits” from foreign governments to the U.S. Treasury. But this misses the point: once Trump receives benefits from a foreign country, he has violated the Emoluments Clause no matter what he chooses to do with them. It is unclear what “profits” even mean here. Every time a foreign government or its officials use a Trump hotel rather than an alternative, Trump has benefited.
Moreover, there is every reason to be skeptical of this promise in light of Trump’s lack of transparency.
Citizens for Responsibility and Ethics in Washington filed this lawsuit in federal court in New York. It does not seek money damages, but rather a declaratory judgment from the court that President Trump is acting unconstitutionally and an injunction to require him to comply with the Constitution. I am part of the legal team for a simple reason: the President should obey the Constitution and laws of the United States.
Erwin Chemerinsky is dean of the UC Irvine School of Law.
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