Professor Laurence Tribe is part of a legal team that has filed a lawsuit against President Trump, arguing that transactions between the Trump Organization and foreign governments violate the Emoluments Clause in Article I, Section 9 of the Constitution. The Record recently spoke to Professor Tribe about the Emoluments Clause and the lawsuit his group has filed.
The Record: Explain the lawsuit you’ve filed against the President – what is the Emoluments Clause and how has President Trump violated it?
Larry Tribe: Working with a large group of very talented lawyers, I’ve filed a federal lawsuit against the President asking the U.S. District Court for SDNY to declare him in violation of the Emoluments Clause and require him to take the steps needed to stop that violation.
Actually, there are two Emoluments Clauses and not just one. There’s the Foreign Emoluments Clause of Article I, Sec. 9, which forbids high federal officials like the President from receiving economically valuable benefits, whether in cash or in any other form, from foreign governments or those they control – as a way of ensuring that our officials won’t be beholden to anyone but the American people and, in particular, that they won’t even be tempted to do the bidding of any foreign power, and so that no foreign power will be tempted to curry favor with our officials, especially our President, through conduct benefiting not the United States but the private fortunes of the President or others in the Federal Government.
That’s the Clause that President Trump is violating on a continuing basis and has been ever since he took the Oath of Office – through things like receiving the enormously valuable trademarks that China just issued to him upon his becoming President after a decade of denying his previous legal efforts to win those trademarks, or his nearly $1 billion in loans from the Bank of China, or his shadowy but lucrative dealings with Russian oligarchs, or Kuwait’s sudden switch from the Four Seasons to the Trump Hotel in DC as the place to host a major Kuwaiti event in return for $60,000 in cash and the huge PR value of showing off that hotel as the go-to venue for foreign governments seeking to grease the President’s palm.
That gusher of money and other benefits pouring from governments around the globe into a whole constellation of businesses owned by Trump (even if temporarily operated by others) imperils our vital interests by creating both the reality and the appearance that, whenever President Trump negotiates a trade deal or imposes a travel ban or makes any other policy decision with large implications for American workers, companies, consumers, or potential victims of terror, his choices of what deal to strike or which countries to exempt from the ban will be driven by an invisible mix of genuine patriotic concern and sheer personal greed. The point of the Foreign Emoluments Clause was to make guesswork about the motives of a high U.S. official, whether a cabinet member or the President, unnecessary and to avoid the corrosive implosion of public confidence in the integrity of those who exercise governmental power over our lives.
The other relevant clause is the Domestic Emoluments Clause of Article II, Sec.1. It forbids all payments or benefits (other than POTUS’s congressionally fixed compensation) flowing to the President from any federal department or from any of the states or cities that might otherwise be tempted to seek the President’s favor over competing cities or states or departments when it comes to budgetary allocations or other discretionary decisions.
The Record: I hadn’t heard of the Emoluments Clause before you filed this suit – why do we have this clause in the Constitution?
LT: I can’t blame you for never having heard of either of the Emoluments Clauses, or maybe thinking they were just funny names for some exotic lotions to be smeared over the skin to protect it from harmful sunlight. Most Presidents have taken great care not to violate those clauses, so they have gone largely unnoticed by the lay public, not having generated impeachment proceedings or judicial decisions. But the enormous importance of both clauses, especially the Foreign Emoluments Clause, was clear to the Framers and should be obvious to anyone who reflects on the way they function to head off the worst conflicts of interest that any of us might imagine.
The Record: Has a President ever been accused of violating this clause before?
LT: No President has done what this President is doing and thus no previous President has been in a position to trigger a serious accusation of violating the Foreign Emoluments Clause. Other Presidents who have had great personal wealth have taken the steps needed to put their funds into genuinely blind trusts so that a “great wall” and not a one-way mirror would stand between them and the temptation of doing the bidding of foreign masters. It strikes me as hugely ironic that a hyper-nationalist administration should be the one to preside over what’s starting to look like a hostile takeover of the United States by a foreign adversary. But that’s what seems to be going on behind a different sort of opaque wall, the one with which this President has surrounded his labyrinth of debts and other financial dealings that might be revealed if he were to release his tax returns.
The Record: President Trump’s Executive Order concerning immigration was obviously criticized by Democrats for a host of reasons, but interestingly many Republicans who supported the idea of an executive order halting immigration from Muslim nations were nonetheless critical of the President for leaving nations he does business with (i.e. Saudi Arabia) off the list. Is that the type of thing the Emoluments Clause is concerned with?
LT: Yes, this is indeed the sort of thing the Foreign Emoluments Clause is designed to avoid.
The Record: The media response to this lawsuit (from what I’ve seen) seems to be along the lines of “it’s worth a try, but likely to fail” – specifically because of the difficulty you may have proving injury. Is this suit destined to fail?
LT: If I thought it were likely, much less destined, to fail, I wouldn’t be wasting my time on it. In my view, this lawsuit is rock solid. Critics who suggest that the group I’m representing doesn’t suffer concrete injury and hence doesn’t have standing to sue the President over these violations in an Article III court are mistaken both about how the group called Citizens for Responsible Ethics in Government (CREW) is impacted and about the Havens Realty precedent’s vitality in the Second Circuit, but this isn’t the place or time to go into that in detail. At any rate, other plaintiffs with unquestionable standing are clamoring to join our lawsuit, so any thought that it might just go away on technical grounds would be foolish.
The Record: Where is the case at procedurally?
LT: The Government’s answer to our complaint is due to be filed next month, and we’re looking forward to seeing what they have to say.
The Record: How, if at all, do you think the role of lawyers and legal scholars has, or should, change it was has been dubbed “The Post-Truth Era”?
LT: Lawyers and legal scholars have an even more fundamental role now that more people than ever seem to challenge the very idea of objective truth and talk as though all factual questions were matters of opinion. Part of what falls to our profession is the task of reminding people that they’re entitled to their own opinions but not their own facts. That might be a cliché, but it’s a vital one.
The Record: Is there anything else you think students should know about this lawsuit?
LT: Plenty, but I’m afraid this is about all the time I’ve got today.