Michael Macagnone

A pair of senior congressional Democrats pushed a New York federal judge to keep a lawsuit over President Donald Trump’s foreign business ties alive Friday, arguing the president can’t dodge the Constitution’s emoluments clause in court.

Sen. Richard Blumenthal, D-Conn., and Rep. John Conyers, D-Mich., filed the amicus brief in a suit brought by D.C.-based watchdog group Citizens for Responsibility and Ethics in Washington last week, arguing against a government bid to dismiss the suit. While the U.S. Justice Department has argued that only Congress can enforce the Constitution’s bar on foreign gifts after the fact, the brief from the two frequent Trump critics argued that courts must have a say in enforcing the emoluments clause.

“If post hoc action by Congress were the only remedy available when an official violates the clause, that clause would cease functioning as the framers provided: No longer would a majority of Congress be needed to approve of any foreign emolument, as the Constitution’s plain language demands,” the brief said. “Instead, a majority would be required to disapprove of such an emolument — and even that would be possible only when Congress, through its own efforts, manages to discover an official’s violation of the clause.”

The group has sought an order to have the president divest from his private business assets, alleging that he has raked in millions from his businesses since the start of his term, including payments from foreign governments. The DOJ argued in June that CREW had no standing to sue and the relief they sought would be unconstitutional since it would amount to an injunction against the president in his official capacity. In addition, the agency argued that their reading of the emoluments clause would effectively bar the president from participating in his own business.

In their brief, Blumenthal and Conyers, who is also the ranking member on the House Judiciary Committee, said that the DOJ has the wrong reading of the clause. The president could certainly continue to operate his business — as long as he goes to Congress first.

“Under the ‘consent of the Congress’ provision, presidents and other officials may conduct whatever business with foreign governments they like, and accept whatever benefits they wish to receive from those transactions, without violating the foreign emoluments clause — so long as they obtain congressional consent to do so,” they said.

The brief noted that past presidents followed that route with Congress, even when those gifts were “trivial next to the riches that President Trump is reaping from his business dealings with foreign governments.” Presidents like Abraham Lincoln, Andrew Jackson and Martin Van Buren all either refused gifts or presented them to Congress to be disposed of to other parts of the government.

The understanding of the clause at the time and since has produced a system where “no official, in short, would be the sole judge of his own integrity,” and Congress should have a constitutionally mandated role in that oversight, they said.

A statement from Conyers and Blumenthal following the filing said that they would continue to stand up to what they perceived to be overreaches by the Trump administration.

“The Constitution’s foreign emoluments clause is clear. Federal officials, including the president, cannot accept benefits of any kind from foreign states unless Congress consents,” Conyers said in a statement. “President Trump, however, continues to violate this key anti-corruption provision, which was meant to ensure that the nation’s leaders put the national interest above their personal interests.”

The White House press office did not immediately respond Monday to a request for comment. A representative from the DOJ could not be immediately reached for comment Monday.

CREW is represented in-house by Norman L. Eisen, Richard W. Painter, Noah Bookbinder, Adam J. Rappaport and Stuart C. McPhail and by Deepak Gupta, Johnathan E. Taylor, Rachel Bloomekatz and Matthew Spurlock of Gupta Wessler PLLC, Joseph M. Sellers, Daniel A. Small, Christine E. Webber and George F. Farah of Cohen Milstein Sellers & Toll PLLC, Laurence H. Tribe of Harvard Law School, Erwin Chemerinsky of University of California, Irvine School of Law and Zephyr Teachout of Fordham University School of Law.

Trump, who is being sued in his official capacity as president, is represented by Jean Lin, James R. Powers, Chad A. Readler, Jennifer D. Ricketts and Anthony J. Coppolino of the U.S. Department of Justice.

Blumenthal and Conyers are represented by Elizabeth B. Wydra, Brianne J. Gorod, David H. Gans and Brian R. Frazelle of the Constitutional Accountability Center.

The case is Citizens for Responsibility and Ethics in Washington v. Trump, case number 1:17-cv-00458, in the U.S. District Court for the Southern District of New York.