Seeking to shore up Congress’s power to block President Trump from gaining benefits from his business empire, nearly 200 Democratic members of the House and Senate sued him in an unprecedented lawsuit on Wednesday. The main aim of the lawsuit is to force the President to ask Congress to consent to the income and benefits they claim his companies receive from foreign governments.
Trump, the lawsuit contended, has failed to seek consent from Congress and thus is now violating the Constitution’s ban on receipt by government officials of “emoluments” and benefits from other nations’ governments.
Joining in the lawsuit, filed in a federal trial court in Washington, D.C., were 30 of the 48 Democrats now in the Senate and 166 of the 194 Democrats in the House. No Republican lawmakers signed onto the lawsuit.
This marked the third time that President Trump has been sued over the issue of his business ties. Initially, he was sued by a government reform group and by owners of businesses that compete with Trump commercial operations, and then, earlier this week, he was sued by the governments of the state of Maryland and of the District of Columbia.
The new challenge by the large group of Democratic lawmakers is based upon a simple claim: the Constitution gives them a right, as members of Congress, to grant or deny their consent to a government official’s receipt of valuable benefits from any foreign government, and the President’s refusal to seek that consent takes away entirely that right.
The argument that the power of consent has been completely nullified by the President’s refusal to seek it is designed by bolster the lawmakers’ right to sue (or, technically, “standing” to sue under the Constitution’s Article III). The courts generally have not allowed legislators to sue if their claim is nothing more than that they wound up lacking enough votes to win in a legislative action. Only if their voting power has been nullified, those precedents suggest, can lawmakers sue.
President Trump’s lawyers have moved to try to get the courts to throw out the first lawsuit against him under the Constitution’s Emoluments Clause – the one that is pending in a federal trial court in New York City. The legal brief arguing for dismissal contends that the Emoluments Clause only applies if a government official takes an official action for which some form of compensation is directly paid. The Trump legal team has not yet replied to the lawsuit by Maryland and the District of Columbia, filed on Monday in a federal trial court in Greenbelt, MD.
In the new complaint by the Democratic members of the House and Senate, the challenge lists a variety of business activities by foreign governments that are said to benefit Trump business properties and that those governments have, or will have, interest in getting policy benefits from Trump in return.
It does not claim that those transactions themselves are illegal, only that they could have an influence specifically upon Trump when he carries out specific policy actions involving those nations, and that he needs consent from Congress in that situation as a check against abuse of presidential power.
Although the 54-page complaint has details on a number of transactions, many of the details coming from news stories, the lawsuit argued that the President has been able to conceal many of his business activities by the corporate forms in which his many interests now exist. Thus, the full extent of those interests is not known, the lawsuit asserted.
Because the President “has failed to come to Congress and seek consent before accepting foreign emoluments that have been confirmed through public reporting,” the filing said, “it is impossible to know whether [he] is accepting other foreign emoluments that have not yet been made public. Indeed, through his personal attorney, [he] has indicated that he does not believe the Constitution requires him to seek or obtain Congress’s consent before accepting benefits arising out of exchanges between foreign states and his businesses.”
The lawsuit contains an extensive history of the worry of the nation’s Founders about the possibility that foreign governments would try to corrupt American government officials – and especially the president – with gifts and payments. It notes that a ban on accepting gifts or other things of value was contained in the pre-constitutional Articles of Confederation, and was carried over into the Constitution when it was drafted in 1787, when the clause was expanded to include a requirement for consent of Congress before such benefits could be accepted.
The filing also notes that the constitutional provision has been enforced repeatedly, with the very first incident coming in 1798. It recounts the history that has unfolded since then.
Unless the courts issued an order compelling President Trump to seek congressional consent for the benefits to his businesses, the lawsuit argued, the lawmakers cannot force him to do so.
Specifically, the lawsuit asks the courts to issue orders to confirm explicitly that the President has a duty to seek that consent, to declare that he is now violating the Constitution by failing to do so, and to bar the President from accepting any benefits for his businesses from a foreign government without asking Congress to consent.
The President’s lawyers will have a chance to respond to the lawsuit before it proceeds. The lawsuit does not seek any temporary order against the President, to be in effect while the lawsuit unfolds.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958.
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