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Brief # 7 Social Justice

Supreme Court Rules in Favor of Trump on Emoluments Cases

Zack Huffman

February 3, 2021

The U.S. Supreme Court halted a pair of ongoing emoluments lawsuits against former president Donald Trump on Monday, Jan. 25, noting that the cases stopped being relevant when Trump left office.

One of the lawsuits was filed days after Trump’s inauguration in 2017 by Citizens for Responsibility and Ethics in Washington. The suit claimed Trump’s vast business empire, from which he refused to divest, created numerous ways for foreign interests to buy influence over the president.

“Applied to Donald J. Trump’s diverse dealings, the text and purpose of the
Foreign Emoluments Clause speak as one: this cannot be allowed,” said the original civil complaint, which was filed in federal court in New York City.

“President Donald Trump has been violating the Constitution since noon on January 20, 2017,” wrote Gabe Lezra, staff counsel for the Citizens for Responsibility and Ethics in Washington. “His decision in the months prior to his inauguration to retain ownership and control of his sprawling business empire—a move that went against both long-standing historical practice and the advice of career government ethics officials—put him at odds with the Constitution’s original anti-corruption provisions the moment he was sworn in.”

The second lawsuit, filed in June, 2017, came from the attorneys general of Maryland and Washington D.C. and alleged similar claims about Trump businesses functioning as a means for Trump to accept payments from foreign sources.

Both lawsuits cited the emoluments clause of the Constitution which dictates that Congress must approve all payments the president receives from foreign sources.

The rulings were part of an order list that was publicly released on Monday, Jan. 26. Each week, the Supreme Court issues an order list, which is series of brief rulings on cases. The Supreme Court’s order also included instructions for the lower courts that previous ruled on the case to vacate their actions, which effectively remove any precedents that may have been set.

 

 

Analysis

The emoluments clause, as it was originally intended, was created as a safety guard against corruption of diplomats. It was a reaction to the European royal tradition of gift giving by kings and queens, according to a 2016 report from the Brookings Institute. For example, the King of France an ornate box to Ben Franklin when he was serving as diplomat to France. Franklin had to seek permission from Congress to keep the box.

Although the clause originally applied to diplomats and ambassadors, as recently as 2009 the Department of Justice’s Office of Legal Counsel determined that the clause applied to the presidency. The official interpretation was made after Obama was awarded the Nobel Peace Prize, which the Department of Justice deemed exempt from the emoluments clause because it was not granted by a foreign government.

Despite the 2009 determination, the emoluments clause remains largely untested, especially in the case of someone like Donald Trump. By refusing to divest from his businesses, Trump maintained a vast network of opportunities for foreign interests to buy influence in a manner less direct than a simple jeweled box.

“Never in American history has a president presented more conflict of interest
questions and foreign entanglements than Donald Trump. Given the vast and global scope of Trump’s business interests, many of which remain shrouded in secrecy, we cannot predictthe full gamut of legal and constitutional challenges that lie ahead,” said the Brooking Institute’s report, which was written by Norman Eisen, Richard Painter and Laurence Tribe.

The two emoluments lawsuits filed against Trump were seeking a court order that Trump’s business automatically put him in violation of the Constitution. Essentially, the plaintiffs wanted a ruling the Trump broke the lawsuit, as opposed to seeking a specific punishment for the violation.

Both cases went from federal court to their respective circuit courts of appeal where there were rulings against President Trump.. Trump then appealed his losses at the circuit level to the Supreme Court.

A pair of briefs, filed on behalf of Trump before the Supreme Court at the end of December, argued that both cases were moot since Trump had lost reelection and Biden was, at the time, on the verge of being inaugurated. Basically, the court could not properly find that Trump was in violation of the emoluments clause if he was no longer bound by that clause as a former president. The Supreme Court agreed.

Despite the outcome, the attorneys general celebrated their lower court victories for laying a pathway by which the emoluments clause could be enforced by the court – provided legal action takes place before the president leaves office.

“The Emoluments Clauses were specifically inserted into the Constitution to prevent federal officials, including the President of the United States, from profiting from their positions in government,” said AGs Karl Racine and Brian Frosh in a joint statement following the Supreme Courts ruling. “President Trump illegally profited from his office by receiving improper emoluments in the form of money from foreign governments, federal agencies, and state governments that conducted business at his hotel to curry favor with him and his administration.”

On the other hand, Trump’s attorneys created their own blueprint for dragging lawsuits out until the end of a presidential term, rendering them irrelevant.

Learn More

The U.S. Supreme Court’s Order List for Jan. 25
https://www.supremecourt.gov/orders/courtorders/012521zor_3f14.pdf

Profiting off the Presidency: Trump’s Violations of the Emoluments Clauses

Profiting off the Presidency: Trump’s Violations of the Emoluments Clauses

Brookings Institute: The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump
https://www.brookings.edu/wp-content/uploads/2016/12/gs_121616_emoluments-clause1.pdf

DOJ: President’s Receipt of the Nobel Peace Prize
https://www.justice.gov/olc/opinion/applicability-emoluments-clause-and-foreign-gifts-and-decorations-act-presidents-receipt

Statement by AG Racine and AG Frosh on Conclusion of Emoluments Lawsuit
https://oag.dc.gov/release/statement-ag-racine-and-ag-frosh-conclusion?src=ilaw

 

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