Rule of Law

Trump Emoluments Case Puts All 3 Branches to Work

Confronted by hundreds of Democratic lawmakers about the president’s sprawling business ties, Justice Department attorneys urged a federal judge Thursday to throw out what promises to be a historic constitutional drama.

“I understand the frustration, but this is not the proper plaintiff to bring this lawsuit,” Department of Justice attorney Brett Shumate said as 2 1/2 hours of oral arguments stretched into the early afternoon.

Led by Connecticut Senator Richard Blumenthal, the lawmakers here purport to have derived standing from a provision of the federal emoluments clause that says Trump cannot accept payments, benefits or gifts from foreign states without the consent of Congress.

Schumate was unable to identify an alternate party that would have standing to sue but argued Thursday that the lawmakers here have other remedies they would need to exhaust before turning to court.

In addition to its ability to hold hearings or conduct investigations, Congress can pass a bill, Schumate said, that would prohibit the president from accepting any emoluments at all.

U.S. District Judge Emmet Sullivan appeared skeptical of this, however.

“Why does there have to be legislation to get someone to comply with the law,” Sullivan asked.

Later the judge emphasized: ”They’re not remedies unless they’re adequate.”

Brianne Gorod with the Constitutional Accountability Center made a similar point in the argument for Blumenthal, saying the supposed remedies “would flip the emoluments clause on its head.”

Any bill that Congress would pass, the attorney noted, would effectively ask President Donald Trump to “tie his own hands,” since he would have to sign it for the bill to become law.

And if he refused to sign it, a supermajority would be required to override a presidential veto.

Attorney Shumate called this an unavoidable frustration of the political process. Still, he said, the legislative and executive branches are meant to use this process, not the courts, to work through their disagreements.

Though Sullivan warned both sides not to read too much into his questions, he focused on standing primarily, saying at one point the alleged injury seems to be inflicted on Congress as a whole, not individual members.

He also wondered whether the lawmakers would have a stronger case for standing if they had already secured some votes.

But attorney Gorod said lawmakers cannot know how they will vote on a particular emolument without knowing what it is. The Constitution puts the burden on the president, she said, to convince lawmakers to consent to an individual emolument.

Blumenthal and Nadler say all prior presidents have first submitted a letter to Congress outlining an offered emolument, as required by the Constitution. Only after Congress votes and agrees to consent can the president accept it.

When the president doesn’t do that, the individual lawmakers are harmed by being deprived of their right and duty to vote on and decide whether to consent, Gorod said.

Outside the E. Barrett Prettyman Courthouse after the hearing, Blumenthal stressed the broader implications of Congress’ duty under the emoluments clause.

“The issue here is not only about honesty in government, or corruption. it’s about national security,” the senator said. “The reason the founders put that provision in the United States Constitution was to ensure that the president of the United States kept the nation’s interest ahead of his own.”

Blumenthal spoke to the press Thursday alongside one of his roughly 200 co-plaintiffs.

Rep. Jerrold Nadler of New York noted that just one of the political moves that Trump’s business interests call into question is his recent order to lift a ban on Chinese telecom company ZTE after it violated sanctions against Iran and North Korea.

President Trump attributed the shift to lost Chinese jobs and an effort to ratchet down hostilities, but it happened just three days after the Chinese government reportedly doled out $500 million in loans to a theme-park project in Indonesia that will include a Trump-branded golf course and hotel.

And the Chinese government also recently approved more trademarks for the president’s daughter and adviser, Ivanka Trump.

“When the president suddenly shows a solicitude for the Chine company ZTE, is that because Xi Jinping persuaded the president that to do so is in the best interest of the United States, or was that because the Chinese government granted intellectual property and trademarks to the president’s companies or his family,” Nadler asked. “We can’t know that. And that’s the essence of the problem with corruption in government.”

Blumenthal and Nadler said they came to court to enforce the law.

They are a long way from getting that relief but when asked during a press conference after the hearing what would happen if the president refused to follow a court order, Nadler called it “unthinkable” that a president would do so.

Blumenthal meanwhile said the Constitution is not self-enforcing.

“If the president refuses to obey the law, and the courts decline to enforce it, the Constitution is dead letter,” he said. “It’s not self-enforcing, our laws depend on enforcement. And as ironic and tragic as it may be, we are in court because the president is putting himself above the law.”