Trump Transition: Emoluments Clause Ain’t Kryptonite

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The WaPo yesterday reported Attorney General Bob Barr’s trolling the anti-Trump resistance resistance by booking a private holiday party in December at a Trump-owned hotel, Barr books Trump’s hotel for $30,000 holiday party:

Barr signed a contract, a copy of which was obtained by The Washington Post, for a “Family Holiday Party” in the hotel’s Presidential Ballroom Dec. 8. The party will feature a buffet and a four-hour open bar for about 200 people.

Barr is paying for the event himself and chose the venue only after other hotels, including the Willard and the Mayflower, were booked, according to a Justice Department official. The official said the purpose of Barr’s party wasn’t to curry favor with the president.

Barr holds the bash annually, and it combines holiday festivities and a ceilidh, a party featuring Irish or Scottish music.

“Career ethics officials were consulted, and they determined that ethics rules did not prohibit him from hosting his annual party at the Trump hotel,” said the official, who spoke on the condition of anonymity because the party is not a Justice Department event.

At first glance, this booking might seem to be a violation of the emoluments clause of the US Constitution (Article 1, Section 9):  “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Emoluments Clause Ain’t Kryptonite

Alas, one of many bad Democratic ideas: using the emoluments clause as some Trump-busting version of kryptonite, a veritable gotcha. Rather than doing hard political work and figuring out how to beat the Donald, those proud of their ability to spell “emoluments” – and even moreso, to define what the word means – have tried to wield this seeming superweapon, to eliminate or harass post hoc the specter their Chosen One failed to vanquish in 2016.

Alas, courts have so far declined to agree, as I indeed predicted, in previous posts (see US Constitution’s Emoluments Clause: a Nothingburger for Trump, Law Profs Sue Trump, Alleging Violation of the Emoluments Clause; Senate Democrats Discuss Doubling Down on Losing Strategy of Suing Trump on Emoluments; and Party On! Congressional Democrats Pile On to Another Bogus Emoluments Clause Lawsuit).and Emoluments Decision: No Way Back Machine).

The basic problem. Standing. Translation: Just because something’s unconstitutional, doesn’t mean anyone has standing to do anything about it. As I wrote in the nothingburger post referenced above:

This often comes as a surprise to non-lawyers, but the reality is that the US legal system strictly limits who can sue. Persons must have standing in order to bring a suit (as compared to some countries, such as India, and US states, such as California (but only for state law violations),  where it is possible to bring a public interest litigation to right an obvious wrong). In US federal court, the authority for bringing a suit comes from Article III of the Constitution.  To summarize very broadly an extremely complicated area of the law, to have standing to sue, plaintiffs must be involved in an actual case or controversy– meaning that one cannot bring a case just to determine what a court MIGHT decide. Further, a long series of cases has also established that plaintiffs must have suffered a particularized injury in order to prevail in a lawsuit. This provision prevents someone from bringing a suit arguing, hypothetically, that as a taxpayer, s/he has been harmed by a general policy of the US government.

What does this mean? Well, I would suggest that no one should spend hard-earned money and try to find a lawyer to bring a suit alleging that President Trump has violated the emoluments clause– or any other federal anti-corruption or anti-bribery statute, for that matter– anytime soon. That matter would almost certainly be dismissed on the basis that the plaintiff lacked standing to sue.

Even if a plaintiff manages to clear the standing hurdle, other considerable obstacles loom to prevent recovery. And I should mention, that the form recovery would take would be limited, in that it might extend to unwinding the transaction, or perhaps forcing Trump to divest himself of certain holdings. But it certainly wouldn’t result in a do over of the 2016 election, or an installation of Hillary Clinton as president.

Last month, a unanimous panel of the United States Court of Appeals concurred, and tossed one of two pending emoluments cases against Trump, according to NBC, Appeals court dismisses emoluments clause case against Trump involving Washington hotel:

The attorneys general of Maryland and Washington, DC accused President Trump of violating the Constitution’s emolument’s clauses, which bar the president from receiving “any present, emolument, office or title of any kind whatever from any king, prince, or foreign state” or any state in the U.S. Their lawsuit, filed in 2017, said he improperly benefits financially whenever foreign or state governments patronize the Trump International Hotel on Pennsylvania Avenue.

But the appeals court said Maryland and the District could not prove that state or foreign governments were patronizing the Trump hotel because it distributes profits or dividends to the president, rather than because of any of the hotel’s other characteristics.

“Even if government officials were patronizing the hotel to curry the president’s favor,” the court said, “there is no reason to conclude that they would cease doing so were the president enjoined from receiving income from the hotel. After all, the hotel would still be publicly associated with the president, would still bear his name, and would still financially benefit members of his family.”

In short, the court concluded, the link between official patronage of the hotel and the hotel’s payments of profits to Trump is too remote to justify the lawsuit. And the ruling said it was not at all clear that any court action barring the president from receiving money from the hotel would cause officials to stop patronizing it.

Jerri-Lynn here. See the opinion here.

Pouring Petrol on the Fire

Trump himself this weekend rekindled the controversy, by proposing to hold next year’s G7 meetings at the Doral resort which he still owns, according to The Hill, Trump invites new emoluments fight with G-7 resort pitch:

President Trump stepped into another controversy of his own making Monday by suggesting the U.S. could host world leaders at his golf resort outside Miami for next year’s Group of Seven (G-7) summit.

If Trump were to make his resort the meeting venue, his critics argue it would be another clear violation of the Constitution’s Emoluments Clause, which prohibits presidents from accepting payments from foreign countries, U.S. states or the federal government.

“This is a president who has converted the presidency into an instrument of enrichment from day one. There is simply no line between what is official government business and what is a private money-making enterprise — it is all one big venture,” Rep. Jamie Raskin (D-Md.), a House Judiciary Committee member and former constitutional law professor, said Monday in a phone interview with The Hill.

“If he decides to hold the G-7 meeting in 2020 at Trump National Doral Golf [Club], this would be a perfect violation of the foreign and domestic emoluments clauses,” Raskin added. “This is precisely what the framers of the Constitution opposed.”

Other legal experts and Democrats also raised objections.

Laurence Tribe, a Harvard Law School professor, tweeted that Trump’s pitch was “Emolumentally clear! Trump keeps proving that he is deliberately violating the Constitution’s main safeguard against financial corruption and compromise of presidential decisions by foreign powers.”

The Bottom Line

Give it up, guys. The emoluments clause isn’t kryptonite, and even on an expansive reading, is not much more than a nuisance to Trump. Eyes on the 2020 prize please.


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  1. John Beech

    Eye on the 2020 prize, eh? Reelecting The Donald, I presume, Anyway, amongst friends, his support is unwavering. I’m the only one flirting with Bernie and they just roll their eyes at me when I bring him up. My sole reason is Medicare For All because math. That, and I wouldn’t treat my dog the our systems treats citizens. Citizens in Appalachia performing tooth extraction with a bottle of whisky and pliers? My God, this is screwed up!

  2. inode_buddha

    If Dems actually gave a crap about emoluments clause they would never have ran Hillary. Partisanship reeks of hypocrisy, knowing no shame, and having no honor because they have no honesty.

    1. NotTimothyGeithner

      This is the ultimate expression of kids who cared about student government. Power was decided, but the dull kids who sat in the front row crave their titles for following the rules (of the power establishment), so instead of building power, they are whining about the rules.

      1. Michael Fiorillo

        Love your student government metaphor.

        The #McResistance TM and those with clinical cases of TDS are predictably incapable of understanding that legalisms which border on magical thinking cannot rid us of Trump, since the corruption of the legal system is a major reason he’s President.

        They will go to any lengths to avoid speaking with people unlike themselves, accepting them where they’re at, and devising political strategies that will motivate them. Even if they made that jump, their funders and donors wouldn’t allow it.

        1. NotTimothyGeithner

          The “norms fairy” types are desperate to protect the acceptable “elite” more than anything else. Trump v Clinton is an elite spat, not a violation of norms.

          After all, the “norms fairy” believers have been whining about Nader since the most egregious violation of normality in American history, Bush v Gore. One, theoretically impartial arbiter for the elites weighed in on behalf of an acceptable political elites. Al’s view on global warming didn’t make him a rock solid ally of the parasite class, and the threats of “Demographics of destiny” weren’t weighing on the GOP quite as much. Bill had not built a massive fundraising operation yet.

          Could you imagine these people if LBJ was around today? Johnson tweeting about his…last name from the can. Yeesh. Though, now that I think about it, there really should be a LBJ twitter account.

          1. Michael Fiorillo

            Ah, Bush v. Gore, when norms were norms and the system “worked,” since Russiagate was in part about rehabilitating Bush and his crew. After all, I almost shed a tear when he shared a piece of candy with Michelle Obama at McCain’s funeral, thinking about the Lost Idyll it represented… or, at least, that’s what I was told to feel.

            When acquaintances are poised to call me a Putin shill, I tell them to show me a photo of them protesting Bush v. Gore in public, at which point I’ll listen to them go on about Trump’s violations of norms. While it doesn’t affect their condition, it usually shuts them up for a few seconds…

      2. Off The Street

        Well, there goes yet another panel opportunity for those wishing to show up on CNN! Now they will find something else with which to cudgel, er, lecture us mere mortals about. Oh, the humanity.

    2. Another Scott

      I was going to post the same thing. The foreign government “donations” to the Clinton Foundation seem to be a more direct violation of the clause than patronizing a business owned by Trump, provided, of course that plaintiffs get around the standing issues.

  3. George Phillies

    THere is some reason to suppose that unlike the Nixon event Barr is not a foreign king or prince. Nixon did have an emolument issue, remember?

  4. bassmule

    “But the appeals court said Maryland and the District could not prove that state or foreign governments were patronizing the Trump hotel because it distributes profits or dividends to the president, rather than because of any of the hotel’s other characteristics.”

    This is hardly the point, is it? Trump does profit from the trade brought by state or foreign governments, and they do patronize his hotels to curry favor. And while it may seem beside the point right now, Trump’s obvious promotion of his own properties hurts the reputation of the United States: Whatever abstruse reasoning the court may apply, he is showing the world, every day, that corruption at the very top of the government is permissible.

    1. pictboy3

      Agreed. This is just a bad decision. I’m agnostic on the standing issue, it would be better if local hotels were suing instead of the state AGs, but whatever. However, there is no dispute that he does benefit from foreign governments patronizing his hotels. Why the court thinks there needs to be some sort of mens rea attached to whether that benefit is designed to influence the president or not seems to be creating Constitutional law out of whole cloth. The emoluments clause says this sort of thing is impermissible, flat out.

      1. Mike

        It would be well to take this issue up as part of a needed change to the Constitution and its property protections. In short, a new societal agreement would make owning any profitable concern while serving as a public official impossible. All such properties would need to be divested, and the Presidents (and Congress as well) would have to submit to complete audits of their earnings every year by a neutral panel of citizens looking for any payments not part of salary. Punishment? Immediate recall, subject to review if “clean” one year after.

        Innocent until proven guilty, you say? Not when you are on the public dole, and are supposed to serve that public. Elected AND appointed positions should be under scrutiny 24/7/365 as proof to the public that you are fulfilling your duties as the law states you should. After all, if you are not breaking trust or the law, why should you complain???

    2. lyman alpha blob

      US presidents have been showing the world that corruption at the top is permissible for decades now. The Clinton Foundation (charity my ass) was founded in 1997 when Bubba was still president. The Bushes and Cheneys were heavily involved with defense contractors, the Carlyle group, etc – how much do you think they made from all the wars they started? Obama does seem to have waited until after he was president to directly cash in but you’d have to be a fool to think some of the decisions he made weren’t guided by the potential personal profit he would be able to make later. He wouldn’t be getting hundreds of thousands to speak at an investment bank had he thrown all the bankers in jail.

      I don’t know how much it costs to stay in a Trump hotel but my guess is any profits he makes from foreign or domestic dignitaries is chump change compared to the loot made by past presidents. Why didn’t we hear a similar outcry about ’emoluments’ when these people were grifting away their presidential terms?

      And the thing is, the entire world knew about Trump’s business interests before he became president. And it isn’t against the law for a president to be a businessperson. Maybe it should be – in a sane world we wouldn’t let billionaire clowns like this get anywhere near the presidency – but it isn’t.

      Anybody that wants to get rid of Trump before his term is up, wake me up when anyone starts talking about impeachment for fomenting a coup in Venezuela and causing a humanitarian crisis. He deserves to go down hard for that. But the rest of the Beltway is perfectly fine with that aspect of his presidency.

    3. Henriux Miller

      [responding to bassmule]
      As if “the world” didn’t know that “corruption at the very top of the [USofA] government is permissible”? Hello!?
      I think the president is doing a favor to the world, including the American people, by actually showing them how corruption is just business as usual and has been normalized in American politics.

      1. bassmule

        I agree. Trump’s tearing off the mask of Presidential civility has been a “clarifying experience.”

        Yes, I know, as they say around here, “grifters gotta grift,” but Donald has taken it to a whole new level, e.g. his G7 pitch for his hotel in Miami.

  5. Carla

    Thanks, Jeri-Lynn. I don’t know how I missed your previous posts on the topic, but this was was clear and unequivocal. +10 to John Beech and inode_buddha as well.

  6. fdr-fan

    The emoluments clause, like the natural-born clause, was meant to be temporary. Both were designed to exclude Loyalists who had taken the wrong side in the revolution and still served as active agents for England. Later on, the natural-born clause got fossilized but never really used, and the emoluments clause was never even mentioned until this year.

    The latter was NOT meant to penalize businessmen who dealt with customers in other nations. Many presidents worked in business and had foreign customers.


    Seems to me the biggest hurdle with the emoluments clause is that it’s not merely enough to show that the President made profit off a foreign state, but that one would need to establish tit for tat. So no smoking gun, no incriminating secret recording of the deal, no case.

    Of course, if Congress wants to use an alleged violation as justification for impeachment proceedings, they can do so. But then we’re back to the same old problem of the Senate, and the Republicans there don’t care how badly Trump misbehaves, they know it’s career suicide to vote yea on impeachment. So it dies there and Trump is still in the White House.

    1. marym

      The strict requirement of the quid pro quo of a formal government act in direct exchange for something of value, which makes it difficult to establish influence peddling and conflict of interest, is a feature delivered to us by the modern Supreme Court. Even if standing were established for the emoluments clause, how likely is it such a case would fare better than undue influence arguments based on federal bribery or campaign finance laws?

      The whatabouts regarding the Clinton Foundation are justified in the sense that, despite mutual accusations of corruption, neither party, when in power, somehow manages to achieve a conclusive investigative finding against the other, or to pass stronger anti-corruption laws, either of which may eventually cramp their own style.

      I do think a better argument for impeachment is that it would be a vehicle for documenting the governance failures and corruption of the Trump administration, not that it would result in a Pence administration. However, we’re back to square one as if the Democrats had any intention of closing statutory loopholes or restraining executive powers in the future. In the absence of a commitment to good government, not just a reversion to unenforceable “norms” it’s just a temper tantrum.

      Although, norms were nice when we had some:

      President-elect Jimmy Carter today outlined plans to put his farm and business holdings in trusteeship and to stiffen the provisions against potential conflicts of interest for other senior government officials.

      Taking what press secretary Jody Powell called “a first step in fulfilling one of his major campaign commitments to the American people,” Carter ordered measures that will curb retiring officials’ contacts with their former agency colleagues and require thousands of senior Civil Service and political appointees to file annual public statements disclosing details of their net worth and income sources.

  8. JEHR

    As an outsider just looking on (toward the south), it seems to me that some laws are pretty malleable; for instance, there was a time when a bank that defrauded customers or did not do due diligence would be criminally charged, executives would be removed and punished and new bank personnel installed. Nowadays, the charge most often applied to fraud committed by a bank is a fine and a promise not to misbehave again. Misbehaving again and again brings the same fine and more promises. Laws seem to be very permeable.

    Take for example this explanation surrounding fraud:

    Proving Fraud

    The elements required to prove fraud vary in state and federal laws, but generally, one must prove that there was a misrepresentation of an important fact by a person who knew it was false to a victim who reasonably relied on the misrepresentation, and who suffered an actual loss or injury because of that reliance. Additionally, the misrepresented fact must be important and must have substantially influenced the victim’s decision to act. It must be a fact; offering an opinion such as “this is the best house on the block” would not be considered fraud.

    Reading that paragraph just shows how difficult it is to prove fraud. Even more important is the lack of a desire by institutions to get rid of fraud and corruption: when the will to get rid of corruption is not there, corruption will not be found nor eliminated.

  9. Jack Gavin

    I’m far from accusing the Democratic Party of perfectionism but I am hard pressed to believe that the emoluments clause activity was put forward at the expense of harder thinking about removing Trump. The activities are not mutually exclusive. The fact that “harder thinking” activities haven’t dislodged the President doesn’t mean they haven’t taken place.
    What the Democrats are doing in a somewhat successful manner is continuing to show Trump and his associates to be willfully disdainful of what used to be political norms. This, to some people, including me, tells me that Trump and his ilk are political sleazeballs unworthy of running my country. The cumulative effect of Mar-a-Lago political shindigs, AG parties at Trump hotels (nowhere else to go? Really?), publicizing Trump’s petty lies along with the big ones is getting bigger and bigger. Whether this has a big enough impact on the American people remains to be seen. I certainly don’t think this is considered to be the biggest or best weapon in the Democrat’s arsenal. I will say it’s having an effect in my heavily Trumpian area.

    1. NotTimothyGeithner

      Right…because Trump wasn’t against the “norms” before.

      This is part of the innate laziness and intellectual bankruptcy of the “front row kids.” You are looking to appease some kind of “normative fairy” who can dole out justice based on rules from on high. Teacher isn’t going to save you.

      1. NotTimothyGeithner

        Defeating President Trump won’t be an example of a victory. He was never popular. As far as respectable Republicans, try to name one who isn’t a monster? April 1865 was so long.

        Instead of looking to build an alternative power base, Democrats who harp on the loss of “norms” are looking for an easier and “simpler” solution. Its not exactly inspired leadership.

    2. Dwight

      That showing of Trump’s disdain for political norms could have been done without bringing a lawsuit doomed to failure. The lawsuit wasted judicial resources, and diverted litigation resources from more worthy cases e.g. against Trump’s dismantling of environmental regulations or harm to asylum seekers. Finally, the lawsuit gave Trump an unnecessary victory, allowing him to claim he is doing nothing wrong. Tribe and CREW and the state AGs are aware of the case law on standing.

      1. Jerri-Lynn Scofield Post author

        You may surprised at the positions Tribe has litigated on behalf of corporate defendants regarding the dismantling of environmental regulations: not what most would expect, unless you’ve been paying close attention. This account in The New Yorker – which is, incidentally, virtually the house organ of resistance types – tells the sorry tale, in layman-friendly terms: Did Laurence Tribe Sell Out? It should be read and circulated widely. (For the record, I was one of Tribe’s research assistants whilst at HLS, and all I’ll say is to allude to that old line about heroes and valets.)

        1. Dwight

          Yes, it was sad to hear about him putting his talents to work for coal. I guess plastic trees are good enough for him now.

          1. Dwight

            Cthank you for the New Yorker article. I had no idea he had been pushing corporate rights for so long.

    3. MLS

      I see it quite differently. Filing these lawsuits is merely pandering to the TDS bloc of Democratic voters to show them that the people in charge are “resisting” or at least “doing something” to stop Trump. I find it very hard to believe that several state AGs are really so ignorant of the law as to think these suits have any chance of going anywhere.

      It’s politics, nothing more.

  10. Travis Bickle

    It may just be me, but maybe we need to back up and smell the coffee about how The Law really figures in “The Situation.”

    This is, I’m sure, one very correct reading of the reality of pressing an emoluments case. The fact is, however, that we now have some very bright people on the SCOTUS who could rationalize day as night, and with the ideological commitment they clearly have, anything is possible and nothing beyond them.

    I think it was Aaron Burr, one of the less cited Founding Fathers, who observed “the law is a simply whatever is boldly asserted and plausibly explained.” In other words, it’s about whoever has the power at the moment.

    NotTimothyGeither gets at the takeaway here: approaching things intellectually only gets you so far in politics. It has a place, but it’s limited, say to gaming one’s way to an electoral college win so one doesn’t have to resort to cruder means. In Bush v. Gore we saw how that was done, and general population still don’t realize what happened.

    With the current state of play, however, things are simply more blatant. Trump could loose outright in 2020 in the College and then decide to simply not vacate the house. A sufficiently elegant rationalization could be constructed by the handful of smart and committed lawyers who count. We may well see this happen.

    The US is not exceptional. Look abroad, as well as to US precedent, to see how broadly emergency powers have already been construed. You don’t need a fire at the Reichstag these days.

    People on the left, broadly defined, need to get past this business with “rules” when they are contending with others who have transcended them. You then arrive at the need for true commitment, and to grasp the core understanding that amongst the truly committed the ends justify the means. Otherwise you are mere saps.

    At THAT point, you are in game now being played. As it now stands, you are not.

    1. NotTimothyGeithner

      I would love a rigorous intellectual approach to politics, but I find the reliance on faith with professorial trappings is the “centrist” approach. They game out complex plans, but they never analyze the foundations.

      Gaining 2 Republican votes for every democratic voter turned to non-voter is still a three vote swing. Could sacrificing a single issue (replace and add the particular issue as panic sets in) produce a three vote swing for every unit of input? If this is possible, Democrats are poised to crush the Republicans in 1994. They might not be perfect, but they’ll be better than Republicans and will pass good legislation for the most part. Besides the Supremes will protect Roe v Wade…what’s that about zoning laws?

      The arguments of the Third Way like many arguments do make sense, but time produces evidence of success and failure over time. Right now, the Third Way seems to be able to win districts any random corpse with a “d” stamped on the forehead could win and not much else.

      1. Travis Bickle

        “Centrist” approaches have traditionally made sense, and ultimately are needed, but at the moment seem to be anachronistic. They presume give and take, compromise, and good faith bargaining; those things now exist only as one-sided jokes (with apologies to Joe Biden).

        I’d love to be wrong, or see enough strength in the polity to get back to the idea we need to all live together. All this seems naive at this point, but ultimately it’s what needs to happen.

        Awareness of how far things have gone, in theory, would be the first step toward what necessarily may be a structural cure. Step one is always to diagnose a problem clearly. I don’t think I’ve done so, but we need to quit looking for the dropping key under the street lamp when there’s a bully standing over in the shadows laughing at us.

        1. NotTimothyGeithner

          The approach of the “centrist” makes sense in the case of good faith actors. The firefighters, the local transit, the police (even them), and the schools have to find common ground over school funding, and that working together garbage makes sense.

          The problem is we have too many bad faith actors. Fortunately, the usually label themselves. For the most part the Democratic Socialist positions, are all about living together. The issue is the elite don’t want that. We can’t compromise with Mitch McConnell’s positions.

  11. notnotTimGeithner

    i’d like to propose considering the reasoning here in reverse.
    are provisions of the constitution enforceable or not?
    especially when they are specifically written to constrain the powers of one branch of government?
    the argument here boils down to turning the Emoluments Clause into a standard tort.
    the author here pretty much admits this, when she suggests that the remedy for a violation would be to make the plaintiff whole.
    there is nothing in the text per se to suggest this.
    this is a singular, specific constraint on the President’s power, delimited in the Constitution. it is separate from the impeachment clause.
    if the “original intent” was not to give “the people” a cause of action against the Executive, I don’t know what could be.
    note that this author is saying pretty much outright that Article Two is unenforceable–not worth the paper it’s written on.
    i wonder if even our deeply corrupt SCOTUS will be willing to go that far. it is plain text, for God’s sake, and it is in many ways unambiguous.
    there are very few parts of the Constitution that read this way. to suggest that this must be processed according to ordinary tort law strikes me as bizarre. this is not a law. it is part of Article Two. it is higher than law. it is certainly *ground* for impeachment–and its specific mention in Article Two is one reason I hope the Dems pursue that–but it has got to be possible for “the people” per se, through any legitimate representative thereof, to ask the courts to enforce it.

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