Lawyers representing Democratic members of Congress sparred with the Justice Department in court on Thursday over whether Democrats can move ahead with a constitutional challenge to President Donald Trump's ongoing ties to his business empire.
Nearly 200 Democrats in the US Senate and the US House of Representatives sued Trump last year in federal court in Washington, DC, accusing him of violating the Constitution's foreign emoluments clause. A judge heard arguments on Thursday on a key threshold question: whether members of Congress have standing to sue the president at all.
The foreign 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 of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." An emolument has been broadly defined as a payment, gift, or other benefit, although the Justice Department and lawyers suing the administration have disagreed about how exactly to define it and whether the clause applies to Trump's business interests.
Trump ceded day-to-day control of the Trump Organization to his adult sons Donald Jr. and Eric when he took office, but he has not divested his financial interests in the company. He pledged to donate profits that the Trump Organization earned from doing business with foreign governments; the company cut a check for $151,470 to the US Treasury earlier this year, saying that was the profit earned in 2017.
But congressional Democrats say the president's alleged emoluments clause violations are about more than money, pointing to other benefits that Trump's businesses have received, such as the awarding of trademarks and favorable regulatory decisions.
Trump's lawyers argued on Thursday that the members of Congress who sued lacked standing, citing a 1997 US Supreme Court decision, Raines v. Byrd, that held that an "abstract dilution of institutional legislative power" wasn't a specific enough injury for a court to jump into an interbranch fight. Not being able to vote on whether Trump could accept emoluments was the type of "abstract dilution" affecting all members of Congress that was identified in Raines, argued Brett Shumate, a deputy assistant attorney general in the Justice Department's Civil Division.
US District Judge Emmet Sullivan warned at the beginning and end of arguments that no one should read into his questions as suggesting he was leaning one way. But he did start his questioning of Shumate by saying that it appeared to the judge that the government had "overreached" in arguing that it was a "foundational principle" that a denial of Congress's institutional legislative duties was not an injury that could be recognized by the courts. Shumate replied that was what the Supreme Court had held in Raines.
Brianne Gorod, chief counsel of the Constitutional Accountability Center, arguing for the congressional Democrats, said that Raines limited but did not completely shut the door on members of Congress having standing to sue over alleged "vote nullification." In this case, she said, there was a specific, personal harm to each of the members who sued because the president's actions denied them the opportunity to exercise a right to vote explicitly laid out in the US Constitution.
Gorod said the government's suggestion that Congress had other political options to address any alleged constitutional violations by the president — such as passing a resolution or bill prohibiting the president from accepting foreign emoluments — would undermine the purpose of the clause and would not be an "adequate" remedy. Gorod compared the situation to if Trump tried to appoint a cabinet member or Supreme Court justice without going through the Senate confirmation process.
Congress could pass legislation, Gorod said, but Trump would need to sign it — which was unlikely to happen since it would restrict his own behavior — or members would need a supermajority to override a veto. Requiring that kind of affirmative action by a supermajority of Congress would "flip the foreign emoluments clause on its head," Gorod said. The foreign emoluments clause was meant to stop the president from accepting emoluments unless Congress approved them, not the other way around, Gorod argued — the inertia of Congress, or the lack of it, should be an obstacle to corruption, not an ally, she said.
Sullivan asked if the members' case would be stronger if the Senate or the House as a whole approved filing a lawsuit on its behalf or if it were brought as a class-action on behalf of all members, as opposed to only some. Gorod said it wouldn't matter — the foreign emoluments clause gave each member the right to vote to decide whether to approve the president's acceptance of a particular emolument, so even one member would have standing to sue.
Sullivan also asked if it mattered whether Democrats had the votes to block approval if Trump did ask Congress for permission. Gorod said it did not. The vote itself — and the transparency that would come with Trump having to submit a particular payment or other benefit for congressional approval — was what the members wanted, she said, even if they eventually lost. Absent that process, Trump could continue to "brazenly" accept foreign benefits without the public knowing about it, she said.
Gorod said Congress lacked some of the tools it normally had to exercise leverage with the executive branch, noting that there wasn't any appropriation of federal funding that Congress could try to withhold to force Trump to act. Although the press had reported some payments by foreign governments to Trump's businesses, it was difficult for members to act because they did not know the full extent of what Trump was receiving, she said.
"The emoluments we know about are only the tip of the iceberg," Gorod said. "We don't know the full scope of emoluments he's been accepting and plans to accept."
There are two other cases pending that accuse Trump of violating the foreign and domestic emoluments clauses. A federal judge in New York last year dismissed a lawsuit filed by a government watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), finding that CREW lacked standing. The group is appealing that decision.
A federal judge in Maryland ruled in March that the District of Columbia and Maryland had standing to sue Trump over the president's interests in the Trump International Hotel in Washington. A hearing on the second stage of Trump's motion to dismiss that case, dealing with the substance of the allegations, is scheduled for next week.
Sullivan asked the lawyers to address who would have standing to sue to enforce the emoluments clause if he found that the members of Congress did not, saying he found the plaintiffs' argument that there might not be any private party who could do it "troubling." Shumate said that although the government disagreed with the Maryland decision, it showed there could be other types of plaintiffs with standing.
But Gorod said the Maryland case illustrated the limits of other emoluments lawsuits. The Maryland judge found that DC and Maryland only had standing to sue over the Trump International Hotel because they alleged that the president's ties to the hotel put them and local businesses at a disadvantage. Members of Congress were in a unique position to sue to fully enforce the foreign emoluments clause, not just with respect to particular Trump-affiliated businesses, she said.
Sullivan did not rule from the bench and did not say when he planned to release a decision. He scoffed at claims by lawyers on both sides that the questions before him on the standing question were "simple" and "easy," at one point leaning back with a skeptical look on his face. The case involved "very difficult" issues, he said.