Citizens for Responsibility and Ethics in Washington (CREW) and other plaintiffs responded Friday to President Trump’s motion to dismiss their case to enforce the Constitution’s Emoluments Clause. President Trump argued that the clause, which prevents government officers from receiving gifts from foreign countries, was never intended to cover the president’s private business dealings unrelated to his office or service to a foreign power (see our previous coverage of the motion here).
President Trump first attacked the complaint based on standing, and the plaintiffs argue that their injury flows from the benefits conferred on Trump-branded hotels by nature of their association with the president:
[A]lthough bound by the Emoluments Clauses—and sworn to “take Care that the Laws be faithfully executed”—the defendant has adopted a policy and practice of accepting presents and emoluments from government officials, including through his hotels and restaurants. In some instances, he has done so openly and notoriously, ensuring that officials keen to confer financial benefits on the President of the United States know how (and where) to do so. At the same time, he has closely linked his presidency to his properties, visiting them regularly and ostentatiously conducting official business there. The defendant has thus not only violated the Emoluments Clauses, but has done so in an exceptionally public manner, adopting policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection. The defendant’s illegal conduct thereby tilts the competitive field in favor of his properties and against their competitors. Because the plaintiffs here compete “in the same arena” as the defendant’s hotels and restaurants, he has injured them.
Plaintiffs also argue that President Trump cannot square his position on the merits with the plain meaning of the Clause, as well as its history:
When it comes to the merits, the defendant’s conduct is indefensible. By maintaining ownership of his business empire—an empire that is actively seeking out, and profiting from, all manner of transactions with foreign and domestic governments—he has brought himself into direct, sustained conflict with the Foreign and Domestic Emoluments Clauses . . . . The defendant does not deny that the presidency is an “Office of Profit or Trust,” or that his businesses have received (and will receive) money and other benefits from “foreign State[s]” since taking office. The sole merits question at this stage is whether the plaintiffs plausibly allege that any of these benefits constitutes “any present” or “any . . . Emolument” of “any kind whatever” that he has accepted without congressional consent.
The answer can only be yes. The defendant ventures just a single argument for why he thinks it could be anything else. He contends that the Clause does not actually prohibit “any” present or emolument “of any kind whatever,” but only those benefits accepted in his official capacity or that arise from services he has personally rendered. This strained interpretation fails by every relevant measure. It contradicts the plain text of the Clause and ignores the original public meaning of “emolument” as any profit or gain. It would eviscerate the Clause’s purpose, allowing foreign states to make unlimited payments to the president in his private capacity (or laundered through a company he owns). It clashes with longstanding precedent from OLC and the Comptroller General. And it finds no support in two centuries of history.
Our full coverage of the case is here.
(Note: The case has been transferred from Judge Abrams to Judge Daniels, see here.)