Top Legal, Ethics Scholars File First Major Lawsuit Against Trump
The lawsuit alleges that President Trump's foreign business interests are leading to constitutional violations. "These violations of the Foreign Emoluments Clause pose a grave threat to the United States and its citizens," it claims.
WASHINGTON — The first major lawsuit against President Trump's alleged business conflicts was filed by some of the nation's top legal and ethics scholars on Monday.
"Never before have the people of the United States elected a President with business interests as vast, complicated, and secret as those of Donald J. Trump," the lawsuit to be filed on behalf of Citizens for Responsibility and Ethics in Washington (CREW) alleges, "creating countless conflicts of interest, as well as unprecedented influence by foreign governments."
The lawsuit — a copy of which was reviewed by BuzzFeed News on Sunday evening before the Monday filing — alleges violations of the Foreign Emoluments Clause that it claims "pose a grave threat to the United States and its citizens."
Under the constitutional provision, "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."
The lawsuit asks the federal court to issue a declaratory judgment defining elements of the Foreign Emoluments Clause — specifically issuing a judgment that Trump's business interests do or will violate the clause — and an injunction barring Trump from violating the clause.
"As a direct result of [Trump]'s purposeful refusal to acknowledge that he is submerged in conflicts of interest and his purposeful refusal to take precautions necessary to avoid those conflicts," the lawsuit alleges, "[he] is now committing and is poised to continue to commit many violations of the Foreign Emoluments Clause — some documented, and others not yet apparent due to the complex and secretive nature of [Trump]'s business holdings — during the opening moments of his presidency and continually thereafter."
Specifically, the lawsuit points to the leases at Trump Tower in New York to the Industrial and Commercial Bank of China and the Abu Dhabi Tourism & Culture Authority, foreign diplomats' stays and foreign embassies' events at the Trump International Hotel in Washington, as well as investments or planned business dealings in 10 foreign countries, as leading to the alleged constitutional violations.
The complaint was filed Monday morning in US District Court for the Southern District of New York on behalf of CREW — which on Friday also filed a letter with the General Services Administration asking it to immediately begin investigating whether Trump's business had breached its lease of the Old Post Office building with the federal government.
"We did not want to get to this point. It was our hope that President Trump would take the necessary steps to avoid violating the Constitution before he took office," CREW Executive Director Noah Bookbinder said. "He did not. His constitutional violations are immediate and serious, so we were forced to take legal action."
Hope Hicks, the president's director of strategic communications, directed BuzzFeed News to Sheri Dillon, the partner at Morgan Lewis who presented the president's planned changes to his involvement with his business interests at a news conference earlier this month. Hicks wrote on Sunday evening that Dillon "has already very clearly addressed this."
A spokesperson for Morgan Lewis responded to BuzzFeed News' request to Dillon, writing, "We do not comment on our clients or the work we do for them." At the earlier news conference, however, Dillon had dismissed the Foreign Emoluments Clause argument — saying that they did not believe the clause barred foreign officials from "paying your hotel bill."
In an interview with the New York Times — which broke the news of the coming lawsuit — Eric Trump said of it, "This is purely harassment for political gain, and, frankly, I find it very, very sad."
In addition to Bookbinder, the lawyers behind the lawsuit include prominent constitutional law professors Laurence Tribe and Erwin Chemerinsky, prior White House ethics lawyers Norm Eisen and Richard Painter (who are both now on the board of CREW), Zephyr Teachout, and Deepak Gupta.
"Consistent with the Framers’ intent, the definition of a 'present' or 'Emolument' under the Foreign Emoluments Clause also is properly interpreted in a broad manner, to cover anything of value, monetary or nonmonetary," the lawsuit argues. "The Foreign Emoluments Clause also explicitly prohibits the receipt of “any present [or] Emolument . . . of any kind whatever,” emphasizing the breadth of the things of value covered under the provision."
Over the past year, in connection with Trump's candidacy and election, there has been increased focus on the clause — with most legal scholars echoing many of the views advanced in Monday's lawsuit. Those views have not been universal, however, with some scholars suggesting the clause should not be read so broadly.
The lawsuit also raises the possibility that Trump's dealings "also likely cause [him] to run afoul of" another constitutional provision, "the 'Domestic Emoluments Clause'" — which states that the president "shall not receive ... any other Emolument from the United States, or any of them," as in any of the individual states, while president.
A primary pushback to the lawsuit, as was often the case in lawsuits challenging President Obama's actions as president, likely will be as to whether CREW has standing to bring the lawsuit. Standing is a requirement that a plaintiff in a lawsuit have sufficient, individualized injury that results from the alleged action or inaction.
The complaint points to a 1982 US Supreme Court case — Havens Realty Corp. v. Coleman — and a subsequent 1993 case out of the appeals court overseeing federal courts in New York — Ragin v. Harry Macklowe Real Estate Co. — as providing backing for CREW's standing in the new case. The cases found that organizations had standing to bring lawsuits in cases relating to alleged violations of the Fair Housing Act because, as the appeals court put it in the 1993 case, the organization "had to devote significant resources to identify and counteract the defendant's [sic] racially discriminatory steering practices."
In the new lawsuit, CREW alleges that "violations of the Foreign Emoluments Clause have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW’s ability to accomplish its mission." The lawsuit goes on to spend the next nine pages detailing the specifics of this alleged basis for a court to find that CREW has standing to bring the lawsuit.
This report was updated with responses from the White House and Morgan Lewis.
This report was updated when the lawsuit was filed.