Ethics Experts Sue Trump For “Countless Conflicts of Interest” From Foreign Payments

Michael E. McCabe, Jr.Conflicts of Interest, Constitutional Law1 Comment

The rules of ethics–particularly rules that prohibit conflicts of interest and require the utmost loyalty–apply to the President of the United States.  That is the premise underlying a lawsuit filed today by a group of ethics experts against President Trump.  See Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, Case No. 1:17-cv-00458-RA (S.D.N.Y. Jan. 23, 2017).  The complaint, which was filed in federal court in New York, asserts that President Trump’s “business interests are creating countless conflicts of interest, as well as unprecedented influence by foreign governments,” resulting in numerous violations of Article I, Section 9, Clause 8 of the Constitution–also known as “the Foreign Emoluments Clause.”

The Emoluments Clause states that:

no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

According to The Heritage Guide to The Constitution, “the Framers intended the Emoluments Clause to protect the republican character of American political institutions.”  As Alexander Hamilton wrote, “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”  See The Federalist No. 22.  The Foreign Emoluments Clause thus was intended “as an antidote to potentially corrupting foreign practices.”

The complaint alleges that “a federal officeholder who receives something of value from a foreign power can be imperceptibly induced to compromise what the Constitution insists be his or her exclusive loyalty: the best interest of the United States of America.”  The complaint further alleges that this clause prevents the President from accepting “anything of value, monetary or nonmonetary, from any foreign government or is agent or instrument without congressional consent.”

The lawsuit arises from President Trump’s vast international business interests.  According to the complaint, the President has already committed–and will continue to commit–violations of the Foreign Emoluments Clause based upon “at least”: (i) “leases held by foreign-government owned entities in New York’s Trump Tower”; (ii) the use of Trump’s new D.C. hotel (a stone’s throw from The White House) “by foreign governments and diplomats”; and (iii) “business transactions” with foreign governments in dealings connected to Mr. Trump or his organization.  Even payments from foreign-government-owned broadcasters for rebroadcast rights to “The Apprentice” are, according to the complaint, a violation of The Emoluments Clause.

The complaint was filed by Citizens for Responsibility and Ethics in Washington (“CREW”).  This is a nonpartisan organization that “works on behalf of the public to foster an ethical and accountable government and reduce the influence of money in politics.”  Its members include ethics and constitutional law experts and scholars.  CREW states it “monitors the activities of public officials and candidates, as well as business and others that financially support them” to carry out what it calls “carrying out its central mission,” which focuses on identifying “pay-to-play schemes” and looking for “correlations between financial benefits received by public officials and their subsequent conduct.”

It appears the basis for the lawsuit is to gain discovery on Mr. Trump’s business empire, which is both complex and has largely been maintained in secrecy, and its ties to foreign governments or foreign-government owned organizations.  The complaint notes that since he began running for President and up through the present date, “the media has widely reported on these businesses and the conflicts of interest they pose.”  Those allegations have been magnified by the President’s refusal to disclose his income tax returns.

The complaint alleges that Mr. Trump’s blanket denials of any conflicts of interest notwithstanding, the Emoluments Clause applies to the President.  Moreover, Mr. Trump’s stated plan to turn over the control of the Trump Organization to two of his children is insufficient because the President has failed to relinquish ownership in his allegedly conflicting business interests.

The complaint seeks a declaration of rights and an injunction to prohibit the President from accepting “present[s]” or “Emolument[s]” from any foreign state without obtaining “the Consent of Congress.”

The case has been assigned to Judge Ronnie Abrams.  Judge Abrams is an Obama appointee who worked for ten years as a federal prosecutor in the Southern District of New York and has been a federal judge since 2012.  She is the daughter of First Amendment lawyer Floyd Abrams; her brother, Dan Abrams, is a television personality who serves as legal analyst for Good Morning America.

No doubt anticipating a motion to dismiss, Judge Abrams has already issued an order requiring the parties to submit a joint letter advising the Court of any contemplated motions and a proposed briefing schedule.  The case should present a number of fascinating legal issues–from ethics, to constitutional law, to the putative plaintiff’s standing.

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