In the 243-year history of the United States, the emoluments clause in the US Constitution has never been thoroughly tested by the courts.
Two lawsuits are heading to federal court this week to address charges that President Trump violated the Constitution by profiting off his businesses while in office.
In October, Trump said that he was receiving unfair scrutiny because of the “phony emoluments clause” over hosting the G-7 Summit at the Doral resort in Miami. Trump owns the resort. Meanwhile, in a separate legal case, Trump’s legal team has appealed to the Supreme Court in order to shield his tax and other financial documents.
Both cases come at a time when the Democrat-led House of Representatives is trying to impeach him.
What Is the Emoluments Clause?
In practical terms, the emoluments clause(s) does not allow the president to receive benefits nor accept any form of gifts or income from foreign governments. Compensation from the federal government is an exception to this rule.
The emoluments clause is actually separated into two pieces.
The first is the foreign emoluments clause in Article I, Section 9, Paragraph 8 which states:
“No Title of Nobility shall be granted by the United 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.”
The second is the domestic emoluments clause in Article II, Section 1, Paragraph 9 which states:
“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”
What Are the Courts Hearing?
The founders were concerned about foreign influence on and corruption within the highest offices in America. Democrats claim that Trump’s stake in his businesses should have been separated upon him assuming office. They also believe that he puts his business and personal interests above the country.
On Monday, the D.C. Circuit Court of Appeals heard arguments over whether or not Trump can be sued by members of Congress. Then, on Thursday, the court will hear arguments to determine if state attorney generals can bring their own lawsuit.
Democrats in Congress, Maryland, and the District of Columbia say that Trump is profiting from his Washington hotel and that he possesses an unfair business advantage due to his status as president. Additionally, Democrats in Congress claim that Trump did not obtain permission from Congress before profiting from his business. In June 2017, just five months after taking office, 200 House and Senate Democrats filed their lawsuit in federal court.
According to a brief submitted to the court, DOJ attorneys are making the argument that the emoluments clause doesn’t cover routine business transactions through a private business. They say it “refers only to compensation accepted from a foreign or domestic government for services rendered by an officer in either an official capacity or employment-type relationship.”
The real question for the court is this; can emoluments question whether there can even be a lawsuit on the issue?
In the past, most presidents have created a completely independent blind trust to avoid a conflict of interest. Trump’s businesses are not a complete blind trust as his sons and Chief Financial Officer oversee the company in Trump’s absence. The president is still able to withdraw profits for personal use and can make business decisions if necessary.
The Justice Department is defending Trump and argues that “presidents from the very beginning of the Republic, including George Washington, would have received prohibited ‘emoluments.’” The Trump Organization says it has turned over any profits from foreign governments to the U.S. Treasury and that no improprieties exist.
In previous statements, Trump has argued that he doesn’t need the money saying, “If you’re rich, it doesn’t matter,” and that it’s a “phony case.”
by Don Purdum, Freelance Contributor
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