Rule of Law

Citizens for Responsibility and Ethics in Washington, et al v. Trump

In Citizens for Responsibility and Ethics in Washington (CREW) v. Trump, the United States District Court for the Southern District of New York was asked to enjoin President Trump from violating both the Foreign Emoluments Clause and the Domestic Emoluments Clause of the U.S. Constitution.

Case Summary

The Foreign Emoluments Clause requires federal officeholders, including the President, to first seek and obtain the consent of Congress before accepting any gifts, payments, or benefits from foreign states.  The Domestic Emoluments Clause prohibits the President from accepting any “emoluments” from the federal government, or state or local governments, other than his fixed presidential compensation.  President Trump has refused to do what prior Presidents have done and divest himself from his business holdings by establishing a blind trust. As a result, he has a continuing financial interest in businesses around the country and the world and is enriched every time his businesses receive benefits from foreign governments, the federal government, or state or local governments.

On June 9, 2017, the Department of Justice moved to dismiss this case on a number of grounds. On August 11, 2017, in support of plaintiffs’ opposition to that motion to dismiss, CAC filed a friend-of-the-court brief on behalf of Senator Richard Blumenthal and Representative John Conyers, Jr., who are the lead plaintiffs in Blumenthal, et al. v. Trump, the lawsuit brought by more than 200 members of Congress against President Trump for violating the Foreign Emoluments Clause. In our brief, we explained why it is so important to our constitutional structure that federal officials obtain “the Consent of the Congress” before accepting any “present, Emolument, Office, or Title, of any kind whatever,” from a foreign state.  Enforcing that clear and simple requirement is essential to preventing the corruption and divided loyalty among American leaders that the Framers feared—and that still threatens our nation today.  By providing a lawful avenue through which federal officials may accept such benefits – one that is open to public scrutiny and that incorporates safeguards derived from the separation of powers – the “consent” provision discourages federal officials from accepting those benefits illicitly and in secret.

We also explained how the availability of congressional consent undermined arguments that President Trump made in defense of his actions.  For example, President Trump suggested that the court should not resolve this case because Congress should determine what foreign benefits he is allowed to accept. Yet the President’s own actions—or, rather, his inactions—prevent Congress from doing exactly that. Because the President has failed to go to Congress and disclose the benefits he wishes to accept from foreign governments, Congress cannot decide which, if any, benefits to approve, or how the President might structure his arrangements in a way that would guard against the corruption concerns that gave rise to the Foreign Emoluments Clause. Congress cannot consent to what it does not know.

On December 21, 2017, the District Court granted the government’s motion to dismiss on various justiciability grounds, including that the plaintiffs do not have standing to sue. Notably, the court did not rule on the question whether the President is violating the Foreign Emoluments Clause, and its ruling that the private plaintiffs in that case do not have standing to sue has no bearing on the question whether members of Congress do. If anything, the court’s decision underscores the importance of the congressional Foreign Emoluments Clause suit in which we represent the plaintiff members of Congress. The court’s opinion states that it is Congress’s job to address President Trump’s violations of the Foreign Emoluments Clause.  Of course, Congress cannot do its job unless the President first does his and goes to Congress and discloses the foreign government benefits that he wishes to accept. That’s why our clients have filed lawsuit asking a D.C. District Court to require the President to go to Congress, as the clear text of the Constitution requires.