Laurence Tribe, Prominent Legal Experts Sue Trump

By Jennifer Rubin, The Washington Post

24 January 17

he New York Times reported Sunday evening on the first of likely many lawsuits, to be filed Monday morning, attacking President Trump’s apparent violation of the emoluments clause:

The lawyers argue that a provision in the Constitution known as the Emoluments Clause amounts to a ban on payments from foreign powers like the ones to Mr. Trump’s companies. They cite fears by the framers of the Constitution that United States officials could be corrupted by gifts or payments.

The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses, as well as loans for his office buildings from certain banks controlled by foreign governments, and leases with tenants like the Abu Dhabi tourism office, a government enterprise.

The high-profile legal team includes Laurence Tribe, Norman L. Eisen, Erwin Chemerinsky, Richard Painter and Deepak Gupta. One interesting wrinkle: “Mr. Eisen said the legal team intended to use the lawsuit to try to get a copy of Mr. Trump’s federal tax returns, which are needed to properly assess what income or other payments or loans Mr. Trump has received from foreign governments.”

One big hurdle concerns the plaintiff — a good-government group Citizens for Responsibility and Ethics in Washington. Trump’s lawyers will claim CREW lacks standing, that is, a direct injury stemming from Trump’s actions. In the complaint, a copy of which was obtained by Right Turn, the lawyers cite “significant diversion and depletion of its time, resources, and efforts” as the harm to CREW. Just like any business or organization, CREW faces increased expenses as a result of unlawful government action and seeks a remedy for that injury, a source familiar with the legal reasoning tells me. CREW acknowledges others also have likely suffered and will suffer grave injuries that justify court intervention.

Some question whether the president can be sued directly. The answer is clearly yes. “This is a direct action under the Constitution seeking to enjoin unconstitutional conduct by a federal officer. As the Supreme Court reiterated just two years ago,” Gupta, one of the lawyers on the case, told me, citing Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1384 (2015) (majority opinion by justice Antonin Scalia). He notes, “Although Congress can preclude private enforcement of a direct action under the Constitution, it has not done so with respect to the Emoluments Clause.”

The CREW lawyers reject Trump’s lawyer’s version of the emoluments clause, which would exclude arm’s-length transactions. (“The exclusion of arm’s length transactions or dealings involving nonmonetary benefits from the scope of the Foreign Emoluments Clause would run counter to the provision’s text, history, and underlying purpose, since such conduct could give rise to foreign influence and corruption.”)

Among the conflicts cited in the complaint, CREW’s lawyers note his multiple hotel properties in China and the fact that “his company’s acceptance of any benefits from the Chinese government—including permits or approvals for property in China, or additional money or a renegotiation or forgiveness of a loan from the Bank of China—or anything else of value from that or any other foreign government in connection with Defendant’s Chinese business interests, without congressional consent, constitutes a violation of the Foreign Emoluments Clause.” Other countries that the lawyers cite as potential sources of prohibited emoluments are Russia, India, Turkey, the United Kingdom (Scotland), Indonesia, the United Arab Emirates, Saudi Arabia and Taiwan.

The ACLU, which already filed a Freedom of Information Act request for any documents relating to Trump’s potential conflicts, reportedly is seeking entities more directly harmed (for example, a hotel competitor) for a separate suit. An actual person harmed by Trump’s foreign transactions could theoretically bring a suit, Eisen explained to me last week. “With regard to the specific issue of the Trump hotel lease with the [General Services Administration ],” he explained, “that includes hotels and other enterprises that compete for the same dollars as The Trump Hotel, and those enterprises’ workers.” Tribe told Right Turn that if Hotel X in competition with Trump has to negotiate arm’s-length leases while Trump does not, then “there’s a good argument that both Hotel X and its employees are at a competitive disadvantage caused by Trump’s cozy violation of the terms forbidding leasing of that federal building to a federal official, which obviously includes POTUS Trump.”

In other words, let a thousand flowers — or legal theories — bloom. One or more may force Trump to defend his conflicts before a court. If Republicans are peeved about a bevy of lawsuits, they should look in the mirror. Their party never demanded that Trump disclose his tax returns, as every other major-party presidential candidate has done for 40 years. There has therefore been no way to determine whether Trump, for example, is indebted to a foreign government-owned bank or is receiving income from a foreign governmental entity. Republicans in Congress, especially Rep. Jason Chaffetz (R-Utah), chairman of the House Oversight and Government Reform Committee, show zero interest in fulfilling their constitutional obligations by determining whether a blatant violation of the emoluments clause is taking place under their noses. If Congress won’t do its job, perhaps the courts will enforce the Constitution.

Trump’s refusal to divest himself of his properties put him in legal jeopardy and cast a shadow over his administration. (He has yet to produce evidence that he signed documents — laid out but unavailable for inspection at his showy news conference — that purportedly would separate him merely from management of his businesses.) Not only Trump, but also every executive branch employee who takes action affecting a Trump property, has a conflict-of-interest problem. Any executive branch employee who discusses any facet of Trump’s business with his sons or other Trump executives may set himself or herself up for allegations of impropriety under existing bribery statutes. The decisions such officials make may, in some cases, be overturned by a court precisely because the decision-maker had a conflict.

Whether one or more lawsuits force Trump to come clean remains to be seen. However, in refusing to compel Trump’s disclosure or to police obvious ethical problems, Republicans deserve criticism that they enabled the very behavior Trump ran against. Democrats, well aware of this, will no doubt use this to their political advantage.