The first week of President Donald Trump’s new administration started with a lawsuit claiming he’s already violated the Constitution.
The lawsuit, filed by a collection of high-powered ethics experts and legal scholars, argues that because Trump has refused to give up ownership of his hotels and other businesses, he’s violating a clause of the Constitution that prohibits government officials from accepting gifts or payments from foreign governments.
This provision, known as the emoluments clause, is crucial to the debate about Trump’s conflicts of interest, because it’s one of the few available tools that might actually be able to force the president to give up his businesses or to hold him accountable if he doesn’t.
Some legal experts argue the lawsuit rests on shaky ground because it will be hard for the nonprofit that filed it, Citizens for Responsibility and Ethics in Washington, to prove that Trump’s actions have directly harmed them. But even if it fails, the lawsuit is important: It’s the first, and likely not the last, effort by an alliance of ethics experts and well-funded liberal groups to challenge Trump on constitutional grounds. A victory in court isn’t the only way these lawsuits can have an effect.
The case that Trump is violating the Constitution
Presidents aren’t legally required to give up their businesses and investments that could be a conflict of interest while they’re in office. But since Richard Nixon, all presidents have, both to try to ensure trust in government and to provide an example for their subordinates, who are legally required to eliminate conflicts of interest.
Trump is the exception. He’s claimed that he will put his two adult sons, Eric Trump and Donald Trump Jr., in charge of his businesses while he’s in office. But he made clear that he’ll eventually be returning to them: “I hope at the end of eight years, I’ll come back and say, oh, you did a good job,” he said in January.
More important, Trump hasn’t given up ownership of the businesses. So if anybody wants to put some money in the president’s pocket, all they have to do is book a stay at the new Trump International hotel in downtown Washington, DC. The hotel, which has a sales position dedicated to diplomats, has successfully attracted foreign governments to book events and rooms: Azerbaijan celebrated Hanukkah and Bahrain marked its national day at the hotel in December, and Kuwait is scheduled to hold its own celebration there in February.
This is where the Constitution comes in. A section known as the emoluments clause prohibits any officeholder in the United States from accepting any “emolument, title, or office” from a foreign government. An “emolument” is usually defined as money or other benefits you get from a job or office you hold.
Until Trump was elected, the clause, originally a response to Benjamin Franklin accepting a snuffbox from the king of France, was pretty obscure. But the prospect of Trump making money off foreign governments’ bookings at his hotels or through his other businesses has made it a major issue at the start of his presidency.
Trump will continue to profit from his businesses while he’s in office. And many prominent scholars on the issue argue that as soon as that money starts coming in, he’ll violate the Constitution. The lawsuit provides a long list of potential emoluments clause violations, including bookings by diplomats at Trump hotels and leases in Trump Tower, global royalties from The Apprentice, which is shown on state-owned television networks in some countries, and permits issued by foreign governments for Trump-owned or -affiliated businesses in those countries.
The lawsuit asks the court to declare that Trump is in violation of the emoluments clause. Even if he is, though, it would be up to Congress to decide whether that merits impeaching him and removing him from office — and Republicans in Congress so far have been reluctant to look into Trump’s break with tradition on ethical issues.
Trump’s official position is that the emoluments clause does not apply to him. Sheri Dillon, a partner at the Washington law firm Morgan Lewis & Bockius, laid this argument out at a January 11 press conference: “Paying for a hotel room is not a gift or a present, and it has nothing to do with an office. It’s not an emolument.”
Trump planned to avoid the issue, Dillon went on to say, by donating profits he made from foreign stays at his hotels to the federal government. But even if Trump follows through on this promise, it won’t alleviate concerns from former chief White House ethics lawyers and the head of the federal Office of Government Ethics, who maintain that the only ethical solution is for Trump to sell his businesses and let an outsider manage the proceeds.
The big question: Can CREW sue Trump at all?
The lawsuit alleging that Trump violated the emoluments clause was filed by some of the nation’s foremost experts on constitutional law, corruption, and government ethics, including Laurence Tribe, a Harvard professor of constitutional law who has also argued 35 cases before the Supreme Court; Zephyr Teachout, a Fordham University professor who studies corruption (and who has run for office twice in New York); and Erwin Chemerinsky, the dean of the University of California Irvine school of law.
Still, it has a high bar to clear in court. It’s not just a question of proving Trump violated the Constitution. The lawyers must prove their client, the Center for Responsibility and Ethics in Washington, has been directly injured by what they argue are Trump’s unconstitutional actions.
To win a lawsuit, you first have to prove that you have “standing” — that whatever you’re suing about harmed you directly in a way that a court can remedy. If a judge decides you don’t have standing, your case will be dismissed. Historically, this has been a high hurdle for lawsuits against the president to clear, but not an impossible one.
Citizens for Responsibility and Ethics in Washington, the plaintiff in the case, argues that it has standing because Trump’s conflicts of interest and his possible violation of the emoluments clause have been very time-consuming for their organization. The lawsuit describes CREW as besieged by questions from the media about Trump’s business interests.
Answering those questions, according to the lawsuit, took time and resources away from the organization’s other work, including tracking potential violations of campaign finance law, filing comments on proposed regulations, and analyzing nonprofits’ tax forms.
The Supreme Court accepted this reasoning as standing enough to sue in a fair housing case in 1982, but some legal experts are skeptical. Jonathan Adler, a professor of law at Case Western Reserve University, explained his doubts on Twitter on Monday:
Standing claim in #CREWvTrump is quite a stretch. If CREW has standing here, Lujan would have come out the other way.— Jonathan H. Adler (@jadler1969) January 23, 2017
Other law professors, many of them who, like Adler, tend to be conservative, concurred. But lawsuits where the argument for standing was initially perceived as questionable at best have succeeded in the past.
When the House of Representatives sued President Obama over a provision in Obamacare in 2014, arguing that Obama broke the law by giving money to insurers that hadn’t been authorized by Congress, many legal experts gave it little chance of succeeding because they believed Speaker of the House John Boehner did not have standing to sue. But the US District Court for the District of Columbia disagreed and allowed the suit to proceed in 2015, and later ruled in Boehner’s favor. (The case is under appeal.)
When Texas sued over Obama’s executive action on immigration that would have protected the parents of US-born children from deportation, some legal observers, including two American University law professors and former New York Times Supreme Court reporter Linda Greenhouse, argued that the state had no standing to sue. But Texas was allowed to proceed with its case, which it won in appellate courts. (The Supreme Court deadlocked 4-4 in 2016, upholding the appellate court victory.)
Even if CREW isn’t found to have standing, though, the mere fact that it’s filing the lawsuit is significant.
The emoluments clause lawsuit could win without winning
CREW has already challenged the president on at least three fronts. Besides the emoluments clause lawsuit, the group sent a letter to the General Services Administration about the lease on Trump’s DC hotel, which bars elected officials from benefiting from the property. On Friday, the group sued the National Oceanic and Atmospheric Administration for more information on the Trump transition team’s request for the names of scientists working on climate change.
And that’s just in the first three days of Trump’s presidency.
This isn’t a surprise. The chair and vice chair of CREW’s board have been two of the most outspoken critics of Trump’s conflicts of interest: Norm Eisen, who founded CREW in 2003, is the chair, and Richard Painter, George W. Bush’s former ethics lawyer, is the vice chair. Since the campaign, they’ve become a crusading odd couple of sorts, setting aside other political differences (Painter is a lifelong Republican, although he voted for Hillary Clinton) to forcefully and repeatedly decry Trump’s refusal to divest himself of his business interests.
But there are also good political reasons for nonprofits that oppose Trump to sue him. Judicial Watch, a conservative watchdog group, has filed dozens of lawsuits against the Clintons since President Bill Clinton was in office. In 2015, the group filed more than 20 lawsuits over Hillary Clinton’s use of a private email server and also obtained emails from the State Department featuring exchanges between the Clinton Foundation and government officials. Both of those controversies turned out to be pivotal in the 2016 election.
In the aftermath of Election Day, when some Democrats argued that liberals needed their own version of Judicial Watch, CREW was suggested as one group that could step into the role, according to Politico’s Josh Gerstein. CREW was founded with a nonpartisan mission, but David Brock, a Clinton ally and Democratic donor, served as its chair for two years.
Brock spent inauguration weekend at a summit of Democratic donors in Florida and, according to Politico, described CREW as a group that’s likely to be particularly active as the Trump administration gets underway.
Even if CREW’s cases aren’t all winners in court, the legal process could force the Trump administration to divulge information it would rather keep secret. Eisen hopes the emoluments clause suit will force Trump to release his tax returns, which he’s refused to make public. A win in court isn’t the only way for the suit to score points.