Donald Trump's "Extreme View" of Emoluments Clause Challenged by Watchdog Group

CREW argues dismissing its lawsuit would allow the president to "slip the bonds of the Constitution, immunize his financial ties with foreign governments, and reward him for being secret about it."
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President Donald Trump

Dictionaries from the 17th century may not immediately seem relevant to the 21st century business dealings of a reality star turned world leader — but the watchdog group suing Donald Trump over alleged violations of the foreign emoluments clause is invoking the antique reference books to support its argument that the president and his Department of Justice lawyers are ignoring "two centuries of history and a robust body of precedent."

Citizens for Responsibility and Ethics in Washington first sued in January, questioning, among other things, whether payments to Trump from foreign-owned broadcasters related to The Apprentice were illegal under the clause, which bars elected officials from accepting "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State" without congressional consent. The group beefed up its complaint in April, adding business owners as plaintiffs and expanding the list of purported violations to include "gratuitous Chinese trademarks."

The DOJ fired back, claiming that CREW's lawsuit is unconstitutional and arguing that it should be dismissed because the organization lacks standing and the text of the clause doesn't explicitly mention "private business pursuits." 

CREW isn't buying it — and attorney Deepak Gupta makes that clear in the very first sentence of his opposition to the motion, which was filed Friday.

"The President of the United States asks this Court to embrace an extreme view of the law that would allow him to accept all manner of payments and benefits from foreign and domestic governments — exactly what the Emoluments Clauses are designed to prevent," writes Gupta. "The defendant’s novel reading would gut a rule aimed at 'every kind of influence by foreign governments' ... allowing those very governments to send massive payments to the president in his 'private' capacity, or launder them through his businesses. That is untenable."

Gupta argues that because Trump has "gone to great lengths to keep his finances secret," it's not currently possible to evaluate the full extent to which he might be violating the clause — and the attorney claims that even the president's DOJ lawyers are kept in the dark with regard to his money and therefore can't assure the court Trump isn't breaking the law.

CREW's filing, which is posted in full below, claims no president has ever held "such disregard for conflicts-of-interest principles." The group says Trump has used his frequent taxpayer-funded visits to his properties as free advertising, has sharply raised the prices at his businesses since the election and is expanding his financial "entanglements" with foreign and domestic governments.

Much of the filing is dedicated to analyzing the purpose of the emoluments clause and the specific vocabulary used. Gupta attached a list of 40 definitions of "emoluments" from various dictionaries printed from 1604-1806 and included a word-frequency bar graph, showing "profit" as the most common word used in the definition and "office" as the least common.

Gupta also addresses the purpose of the judicial branch, which he argues is to police constitutional rules in cases of controversy — and says it's clear that the courts are better equipped than Congress to determine whether Trump's business dealings are above board.

"To dismiss this case, in the name of faux judicial restraint or whatever mysterious self-serving principle the defendant is invoking, would be an abdication of that responsibility," writes Gupta. "It would allow the defendant to slip the bonds of the Constitution, immunize his financial ties with foreign governments, and reward him for being secret about it."

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