Notice & Comment

Three Reactions to the DOJ’s Brief in CREW v. Trump

On Friday, 6/9/17, the U.S. Department of Justice filed its brief in CREW v. Trump, in which the plaintiffs allege that the President has violated Constitution’s Foreign and Domestic Emoluments Clauses through his continued ownership in Trump Organization entities. I’m sure I’ll have more to say on the case as it progresses, but here are some immediate reactions to the DOJ’s brief:

1. This case raises some tough issues. The first half of the brief (PP. 1-24) goes to whether the plaintiffs have standing to bring the suit. Though the basic elements of standing are easy to describe, the issues can quickly become difficult when one deals with complex or ambiguous facts. (For prior commentary, see Jonathan Adler, Matthew Stephenson, and Michael Dorf.)

After wrestling with standing issues, the government argues (PP. 25-26) that “zone of interest” principles apply and justify dismissal of the lawsuit. This argument raises some fundamental issues regarding the intended scope of the emolument clauses. 

Next, in arguing that the plaintiffs have failed to state a claim under which relief can be granted (PP. 26-48), the DOJ indirectly addresses the merits of the case and the meaning of the Foreign and Domestic Emoluments clauses. After that analysis, the government argues that, aside from the substantive scope of the clauses, the relief sought by CREW is unconstitutional (PP. 48-50), because the requested relief would amount to an injunction against the President in his official capacity.  In this final argument, the DOJ seems to argue that this case presents a non-justiciable “political question,” though it never uses that key phrase.

I’m not aware of anyone who carries expertise in all the topics covered in the DOJ’s brief, which addresses standing doctrines, the emolument clauses, and Presidential immunity. In fact, I bet there isn’t a single person alive who’s an expert on all the relevant issues. Those who really want to dig into this case have their work cut out for them.

2. Although I think the government will win this case if it argues it correctly, the DOJ does not offer a credible argument on how the emolument clauses apply to interests held in business entities. In the DOJ’s view, the emolument clauses “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.” (P. 27). Through this standard, the DOJ essentially adopts a per se rule, under which the use of a corporation or other entity automatically shields the President from emolument violations.

However, for reasons I’ve explained elsewhere, it is entirely possible for transactions between foreign governments and a corporation, like one of those within the Trump Organization, to establish unconstitutional emoluments, gifts, or bribes. The simple creation of a corporate entity should not prohibit the application of the emolument clauses, if that application is otherwise justified. See Parts III & IV of my article, The Foreign Emoluments Clause and the Chief Executive.

3. Putting aside issues related to business entities, the DOJ brief is frustratingly unclear on the government’s threshold definition of “emoluments.” Its brief nebulously states that the emolument clauses generally apply “to the receipt of compensation for personal services and to the receipt of honors and gifts based on official position.” (P.27). But if, as seems to be the case, the DOJ is arguing that federal officials receive “emoluments” only when they receive compensation or gifts in their official capacities, that is wrong. The Foreign Emoluments Clause prohibits foreign government payments for services of any kind, whether or not related to the recipient’s official U.S. government position. See Part II.C of my article.

The DOJ seems to have (incorrectly) equated the Foreign Emoluments Clause with the Domestic Emoluments Clause. However, the orientation of the two clauses differs. See Part IV.C of my article. The Domestic Emoluments Clause applies only to compensation for services rendered as President, but the Foreign Emoluments Clause is not so limited. It reaches payments for services of any kind, and it simply does not matter whether a foreign government hired Donald Trump as President, or in his capacity as a private person. The DOJ is incorrect to imply otherwise.

A friend in the academic community, Professor Marty Lederman, expressed on Twitter his understanding that the DOJ would treat any payment that is received “because of” or “but for” the recipient’s official position with the United States government as an emolument. Cf. P.29 (an emolument refers “to the receipt of value for services rendered or for a position held”). I do not read the DOJ brief that way, but if the brief really says any payment related to the President’s official position is a prohibited emolument, the DOJ will have shot Trump in the foot. Surely, many payments made to Trump (through the Trump Organization) would not have been made “but for” Trump’s Presidency, just as the many state and foreign government payments to President Obama regarding his book sales would not have been made “but for” his Presidency. The DOJ may need to clarify its position on this issue.

The DOJ brief has thus left openings for CREW to pounce on, if it’s willing to moderate its excessively broad arguments, and I look forward to reading the group’s brief, due on July 14, 2017.



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