An update on the Emoluments cases

Among the legal challenges faced by the Trump administration is one centered on obscure parts of the Constitution, two sections that deal with the concept of “emoluments.”

Since Donald Trump’s election in November 2016, three separate lawsuits have been filed about his business empire and conflict-of-interest claims related to his office as President.  In some form, the lawsuits stated the President profited from his public office based on aspects of the Foreign and Domestic Emoluments clauses of the Constitution.

The Foreign Emoluments clause is part of Article I, Section 9, and reads, “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 Domestic Emoluments clause is part of Article II, Section 1, and reads, “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.”

A key factor in all three lawsuits is the exact definition of the word “emolument,” including how the word was understood in 1787 when the Constitution was written.

The current free version of Black’s Law Dictionary defines emolument as “the profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office as salary, fees, and perquisites; advantage; gain, public or private.”

Back in December 2017, a federal judge dismissed lawsuits filed by the Citizens for Responsibility and Ethics (or CREW) in New York against Trump. CREW claimed business activities received by Trump-owned firms hurt local businesses that couldn’t compete with people and groups seeking favorable treatment from the Trump administration.

U.S. District Judge George B. Daniels didn’t agree with those claims, finding that CREW and the businesses lacked standing to sue in court. Daniels said the parties couldn’t prove they were hurt financially by potential business activity lost to the Trump-owned businesses.

Daniels also said that if a situation did exist where foreign interests spent money to curry favor with Trump, it was up to Congress and not the courts to consider the problem.

“As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power,” Daniels said. “If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant’s conduct. As such, this case presents a non-justiciable political question.”

But earlier in July, U.S. District Judge Peter Messitte allowed a lawsuit about the Emoluments clauses brought by the state of Maryland and the District of Columbia to go forward against Trump.

Messitte cited evidence provided by Georgetown University law professor John Mikhail about how dictionaries from the Founders’ time defined the word “emolument” more broadly than argued by Trump’s lawyers. The Trump legal team believed that emoluments were payments specifically related to office holding, and the business activities of the Trump International Hotel were independent of that definition.

For now, Messitte has refused to dismiss the lawsuit and has asked for more filings from both parties.

The third lawsuit is still in process in federal court in Washington, D.C. In June, Judge Emmet Sullivan of U.S. District Court for the District of Columbia heard arguments from members of Congress and the Trump administration. Judge Sullivan is considering if the members of Congress can directly sue Trump for foreign emoluments clause violations.

Scott Bomboy is editor in chief of the National Constitution Center.