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Foreign Emoluments Clause Challenge to President Trump: Powerful Briefs Filed in Support of Members of Congress 

November 6, 2017

Madeleine Albright, Chuck Hagel, Lee Hamilton, Bob Inglis, John Kerry, Walter Shaub, Henry Waxman, and leading law professors join dozens of other prominent experts urging D.C. court to allow claim by Members of Congress to proceed.

Washington, DC – One week after more than 200 Members of Congress filed their own compelling brief in response to President Trump’s motion to dismiss their Foreign Emoluments Clause case, six powerful amicus briefs were filed late last week urging the court to allow the claim by Members of Congress to proceed. Those briefs are summarized below.

Brief of Former National Security Officials

Twenty-two former national security, foreign policy, and intelligence officials – who have worked at the senior-most levels of the U.S. government for Presidents of both major political parties – signed this brief, including former Secretaries of State Madeleine K. Albright and John F. Kerry, and former Secretary of Defense Chuck Hagel. They explain why strict ethical standards are important to the national security and foreign policy interests of the United States which, in turn, supports reading the Foreign Emoluments Clause broadly enough to encompass private financial interactions with foreign governments. As they write: 

Such a reading would allow Congress to exercise its oversight to ensure that no foreign influences improperly interfere with American policy, in a manner that does not undercut, but rather supports the Executive’s wise exercise of national security and foreign policy prerogative.

Brief of Federal Jurisdiction and Constitutional Law Scholars

Sixteen law professors who teach and publish in the areas of federal jurisdiction, standing, and constitutional law signed this brief. With more than 342 combined years of teaching, research, and writing focused on the important questions of constitutional interpretation raised by this case, these professors explain why Members of Congress have standing to bring this case and why the court must hear their claim. As they write:

Only a court can resolve the question of constitutional interpretation at the heart of this case, and declaratory judgment would remedy the alleged violations of the Emoluments Clause in a manner consistent with the text, design, and purpose of that Clause.

Brief of Bipartisan Former Members of Congress

A group of nineteen former members of Congress signed this brief – Republicans and Democrats, Senators and Representatives – from across the political spectrum and the nation, with nearly four centuries of combined congressional service. Given this experience, they discuss why it is essential that federal officials obtain Congress’s consent before accepting benefits from foreign states, as required by the Foreign Emoluments Clause. In the process, they discuss their understanding of the Clause’s text, structure, original meaning, and practice, as well as the critical role that federal courts should play in protecting this anti-corruption provision of the Constitution. They write: 

[T]he text of the Foreign Emoluments Clause is about as clear as the Constitution’s text gets: The President can accept all the benefits from foreign governments he wants, but he needs to request and receive congressional approval first.

Brief of Former Government Ethics Officials

Eleven former government ethics officials – with decades of experience applying ethical rules in the real world, under administrations of both parties – signed this brief. Throughout their service, in addition to advising their agencies about ethical considerations generally, these signatories have also given advice about the Foreign Emoluments Clause, observing firsthand how the Clause works. In this brief they explain why the Clause should be read broadly, consistent with its text and its purpose of preventing foreign states from attempting to corrupt public officials. As they write: 

[W]e have seen few financial disclosure reports containing a web of personal and business entanglements as thick and complex as President Trump’s—and we have never seen a President go to such lengths to obscure his finances from Congress and the American people.

Brief of Separation of Powers Scholars

Seven distinguished professors of constitutional and administrative law who are experts on the separation of powers signed this brief. Emphasizing that the Foreign Emoluments Clause is one of the Constitution’s important checks and balances designed to protect the American people, they argue that the executive branch should not be allowed to deprive Congress of its ability to guard against foreign influence and corruption by playing its proper role under the Clause: consenting to the acceptance of only those foreign emoluments that Congress deems appropriate. They write:

Contrary to Defendant’s [President Trump’s] suggestion, the fact that this action is brought against the President only heightens the need for this Court to hear this case and preserve the specific checks and balances in the Constitution.

Brief of Legal Historians

Five prominent law professors and legal historians signed this brief, discussing their painstaking study of the original meaning of the word “emolument,” and explaining why the narrow definition put forward by President Trump’s lawyers is inaccurate and misleading. As their brief discusses, an investigation of English language dictionaries published from 1604 to 1806, of the influential legal and political writings known to the Founders, and of contemporary usage by the Founders themselves in constitutional debates and in private writings all confirm that the word “emolument” was defined broadly to mean “profit,” “advantage,” “gain,” or “benefit.” They write: 

The founders feared that foreign governments would use financial pressure and incentives to influence and corrupt American officials, or to create the appearance of corruption. Only a broad interpretation of the Foreign Emoluments Clause can guard against such improper influence and be true to the founders’ republican purposes.

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Resources:

“Trump and the Foreign Emoluments Clause,” CAC Resource page: https://www.theusconstitution.org/trump-and-foreign-emoluments-clause

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Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution's text and history.

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