President Donald Trump shouldn’t have to defend his foreign income before a New York federal court, according to a Friday motion to dismiss a lawsuit that challenges the legality of his finances.
The Citizens for Responsibility and Ethics in Washington sued Trump in January, arguing that his overseas royalties from The Apprentice, Trump hotels revenue and other income violate the Foreign Emoluments Clause
That clause, which has been bandied about since the ex-reality star’s election, 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.”
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CREW argues that no United States President has ever had business interests as vast and complicated as Trump’s. “As the Framers were aware, private financial interests can subtly sway even the most virtuous leaders, and entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic,” writes attorney Matthew Spurlock in the complaint. “Defendant is and will be accepting ‘present[s]’ or ‘Emolument[s]’ directly from — or from agents or instrumentalities of — China, the United Arab Emirates, Kuwait, India, Indonesia, Turkey, Scotland, the Philippines, Russia, Saudi Arabia, Taiwan, and other ‘foreign State[s],’ without seeking or obtaining ‘the Consent of the Congress.'”
U.S. Department of Justice special counsel Jean Lin on Friday filed a motion to dismiss the lawsuit — arguing that CREW has failed to state a claim and lacks standing and that the New York federal court lacks jurisdiction.
“Neither the text nor the history of the Clauses shows that they were intended to reach benefits arising from a President’s private business pursuits having nothing to do with his office or personal service to a foreign power,” writes Lin — noting that, if that were the intent, George Washington, Thomas Jefferson, James Madison and James Monroe would all have been in violation.
As to the issue of standing, Lin argues that CREW can’t prove it was damaged.
“CREW alleges that it is injured by the President’s alleged constitutional violations because such violations are in ‘direct conflict’ with CREW’s mission to prevent corruption and reduce the influence of money in politics and because CREW has devoted a portion of its resources to educating itself and the public about the alleged violations and to bringing this litigation, all at the expense of its other advocacy activities,” writes Lin. “But CREW’s voluntary decision to focus on its opposition to the President’s financial holdings does not constitute a concrete, judicially cognizable Article III injury in fact.”
Restaurant Opportunities Centers United, event coordinator Jill Phaneuf and hotel and restaurant owner Eric Goode have also joined the suit as plaintiffs. Lin argues that they also lack standing because alleging that they have lost or will lose business from foreign and domestic government leaders to companies owned by Trump is speculative at best.
Finally, Lin argues that seeking an injunction against the President in his official capacity is unconstitutional.
“The Supreme Court has left open the question whether the President might be subject to an injunction requiring the performance of a purely ‘ministerial’ duty,” Lin writes in a footnote. “However, the relief sought in this case — forcing the President to restructure his financial affairs in order to comply with Plaintiffs’ interpretation of the Constitution —cannot fairly be described as purely ‘ministerial.'”
Lin argues that because the organization is calling into question payments for everything from hotel stays to foreign trademarks addressing the challenge would tie Trump up in prolonged litigation and keep him from doing the job he was elected to do — and it’s Congress, not the courts, that should address the President’s overseas income.
“Congress could weigh the potential for foreign influence and deploy a wide range of options available to it, ranging from providing consent in specific cases to judging whether alternative approaches, such as policies implemented to effectuate the then-President-elect’s pledge to donate profits from foreign governments’ patronage of his hotels and similar businesses, sufficiently address concerns related to the Foreign Emoluments Clause,” writes Lin. “This Court should not abrogate a centuries-long tradition of resolving emoluments-related issues through these political processes.”
Trump’s full motion is posted below, and CREW is due to file its response by July 14.
