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"Emoluments" Suit Against Trump Can Proceed

Are we all about to get a look - finally! - at Trump's tax returns?

Earlier today, Judge Messitte of the Maryland federal district court ruled that the "Emoluments Clause" case - the nicely-captioned DC & State of Maryland v. Donald Trump - can proceed, denying Trump's motion to dismiss the action for failure to state a claim.

The accompanying opinion (available here) is a pretty extraordinary effort, containing a very detailed and scholarly analysis of the meaning of the never-previously-adjudicated Emoluments Clauses*. Well worth reading, especially if your taste runs to dense and complex constitutional argument.

*As I wrote about here last year, in connection with the Chinese government's decision to issue a number of trademark registrations to the Trump Organization, there are two constitutional clauses dealing with the "emoluments" a President may receive while in office:

The so-called "Foreign Emoluments Clause," (art. I, § 9, cl. 8) provides that "no Person holding any Office of Profit or Trust under them [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."

The Domestic Emoluments Clause (art. II, § 1, cl. 7) provides: "The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them."

The dispute centers almost entirely, at least at this stage, on the meaning of the term "emolument." The plaintiffs assert, in essence, that the Trump Organization's profits from ordinary business transactions - profits that, as the court notes (see footnotes 7 and 8), go into Trump's pocket, given his continuing ownership of the Trump Organization and the feeble "trust" he set up to hold his ownership stake, which allows him to withdraw money in any amount at any time for any reason - is an "emolument"; the term, in their view, covers "any profit, gain, or advantage."

"According to the Plaintiffs, the Clauses were framed so as to flatly bar the receipt by anyone holding office under the authority of the United States, including the President, of any profit, gain, or advantage of any nature or kind whatsoever from any foreign, the federal, or state government. No exception exists, Plaintiffs continue, even if the foreign, federal, or domestic donor receives a quid pro quo from the officeholder in connection with the officeholder's private undertakings."

So when a foreign government makes payments to the Trump Organization for the use of the facilities at the Trump Hotel in Washington - as several have done - this is an "emolument ... from [a] foreign State" and therefore violates the Foreign Emoluments Clause. Similarly, the benefits received under the lease issued to the Trump Organization by the federal government for the operation of the Trump Hotel constitutes an "Emolument from the United States," in violation of the Domestic E.C.

Trump has a different, narrower, interpretation of the term; he argues that it covers only profits "arising from an office or employ." That is, a payment is only an "emolument" if it is made in connection with official actions, as "compensation for official services." The President cannot, say, accept a payment from the government of France for giving a speech to the French parliament, or for serving on the Academie Francaise (in his official capacity), or payments from the Chinese government in exchange for ordering his trade officials to give preferential treatment to individual Chinese companies; but "payments to a federal official for any independent services rendered, such as for the rental of hotel rooms or event spaces privately owned by the officeholder, or payments for meals at his restaurants, privately owned, are payments entirely separate and apart from an 'emolument' paid to the President qua President."

The court adopted the broader reading pressed by the Plaintiffs, and I have to say that, at least on first reading, I find its analysis to be awfully persuasive. Judge Messitte looks pretty carefully both at internal, textual consistency and the "original public meaning" of the term at the time of the ratification of the Constitution, and all evidence - including pretty overwhelming evidence from Founding-era dictionaries and legal texts - does seem to point to the broader interpretation.

We surely haven't heard the last of this, of course. Trump will almost certainly appeal the ruling to the 4th Circuit and beyond if necessary, and I suspect that Judge Messitte's opinion was written with that very much in mind; he clearly was aiming for an opinion comprehensive and reasonable enough that it would be hard to assail on appeal, and it does look to me like he achieved the goal. But others may find Messitte's analysis less persuasive than I do, and there may be weaknesses in his reasoning that are not apparent to me at first blush.

But however this knotty little problem of constitutional interpretation is ultimately resolved, the ruling means that the suit will proceed for the time being. The political fallout from this ruling could be quite substantial, to put it mildly. Not because it will reveal any "emoluments" that haven't already been reported on, but because the court could now allow the parties to proceed to discovery, and that could be the first time that the public gets a close look inside the Trump financial empire - at Trump's tax returns, for example, which would almost certainly be relevant evidence in regard to the nature and scope of the payments that Trump has received to date. I think it is fair to say that that prospect makes Trump very unhappy; I can't imagine many things he wants less than to have the Attorneys General of DC and Maryland poking around in his financial records. Those of us who harbor serious doubts about our President's integrity and law-abiding nature have believed for a while that he's hiding something in there, and we may be about to find out whether we're right or not.

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  • ||

    " and that could be the first time that the public gets a close look inside the Trump financial empire - at Trump's tax returns, for example"

    Would the books for the hotel provide the necessary information regarding who stayed and when and for how much? Why would his personal returns be needed?

  • James Pollock||

    The Constitution doesn't prevent the President's company from receiving emoluments, they prevent the President from receiving emoluments. So you need to see if any of the money is flowing through the company to him

  • ||

    I follow. Would that not show up as a distribution to owner on the corporation's books and tax returns?

  • James Pollock||

    The fact that the company says it paid out the money is evidence. The company says it paid out the money and the President says he got the payout is conclusive evidence.

    Suppose you have the snitch testify in court that he bought drugs from the defendant. Maybe that's believable, maybe not. But if the prosecutor shows evidence that the snitch was given marked bills prior to the buy operation, and the defendant was arrested with marked bills in his possession, doesn't that pose a more convincing case?

  • Careless||

    Again, learn to read, then answer the question asked, if you can and feel like it. No point in going off on random tangents like this post.

  • James Pollock||

    Question asked. Question answered.

    "Wait, I didn't like that answer. learn to read."

    Somebody's confused here, and hint, hint... it's you.

  • ||

    In addition, who can one distinguish between domestic and foreign money that may flow through to the owner? Which one is it?

  • James Pollock||

    That's why you need the financial records of both the business AND the individual.

  • BillyG||

    How does the individualos tax returns distinguish between domestic and foreign money from a company? All mine just note type, not if the more than one step down was foreign.

  • James Pollock||

    "financial records" have more than just tax returns in them.
    (If you have an ownership interest in companies that are operating overseas, but aren't paying any foreign taxes, you might want to have a quick talk with your lawyer, your accountant, or probably both).

  • Ben of Houston||

    Trump is the owner. He receives a portion of the profits based on his holdings.

    The problem is that this would essentially make any business owner that does international business (which is, essentially every business owner) ineligible for the presidency. GEORGE WASHINGTON would have been in violation, as his plantation exported tobacco.

  • ||

    Ineligible only if doing business with representatives of foreign governments.

  • BadLib||

    If you own a company that makes branded pocket watch chains which are sold around the world and you become President, how would you stop representatives of foreign governments from buying them (and, perhaps, even making it a point to wear them when visiting the White House)?

    Most products that businesses produce are available for foreign sale - even perishable ones (esp. to our northern neighbor).

  • James Pollock||

    "If you own a company that makes branded pocket watch chains"

    The prosecutor still has to prove that the chains were purchased from the President ('s company) and not some third-party, and then you have to work out whether it's a straw purchase or a setup.

    Or the President can put their assets in a blind trust prior to taking office.

  • Lee Moore||

    Why would putting assets in a blind trust help ? If the trust owned 100 shares in Amalgamated Watch Chains Inc, the problem would still be the same. The President would get dividends or capital gains that derived ultimately from the Vietnames Government, one of its officials having purchased a watch chain from an AWC store in Paris.

  • James Pollock||

    You don't understand how blind trusts work, do you? (The term you were looking for is "distributions" BTW)

  • Lee Moore||

    No the term I was looking for was the term that I used. The President would get the benefit of the Vietnamese official's purchase by receiving dividends and capital gains from his holding of stock in his trust. Precisely when the trust distributes the money to him, and after what deductions for expenses, is irrelevant. Indeed it doesn't matter whether the company pays a dividend either. The profit still benefits the President whether it's distributed to his trust, or to him, or stays in the company.

    A blind trust simply means that the benficiary does not know what assets the trust contains. It doesn't mean he's not the beneficiary of its income. Otherwise he wouldn't be the beneficiary. Doh !

  • James Pollock||

    "No the term I was looking for was the term that I used"

    Oh, OK. Have it your way.
    You used two terms, both of them incorrrect.

    "his holding of stock in his trust."
    This one's wrong, too. Are we keeping score?

    "Doh !"
    This one's mis-spelled (the proper spelling is d'oh) but used correctly.

    But "beneficiary" was a correct usage, so you managed to get one right. And you've correctly ascertained that if someone is not a beneficiary, then they are not a beneficiary. Well done!

  • Lee Moore||

    Still sore about sex cells, I see :)

  • James Pollock||

    Sex cells? The pee tapes have sequels already?

  • James Pollock||

    Or are these "sex cells" left over from some previous President? I know one of them put a bowling alley in the basement of the White House...

  • Brett Bellmore||

    Bingo. That's the argument against this broad interpretation: George Washington (And a number of other Presidents!) was clearly in violation of it, and nobody appears to have complained.

    Businessmen have been President before, and Presidents divesting themselves of their business holdings is a relatively recent development.

  • Joe_JP||

    Long historical practice doesn't lead you to have a restrictive understanding of free speech.

    Here, even though Congress has the discretion to allow it to some degree, you want a limited reach of something that is there to guard against corruption and overall republican liberty.

    Not that historical evidence necessary works your way as the opinion and various historical analysis has shown. But, that isn't even the point here. Anyway, "recent developments" as to what would be proper in this context would be logical to take into consideration as it is done in what is deemed reasonable for Fourth Amendment purposes.

  • James Pollock||

    "Long historical practice doesn't lead you to have a restrictive understanding of free speech."

    The same Congress that wrote the First Amendment wrote the Alien and Sedition Acts.

  • loveconstitution1789||

    With Georgia Washington, I think it was widely known that Washington would never kneel to foreign interests over American interests. That is really what that clause was designed for.

    On that note, all government officials should be in full compliance with the Constitution.

  • bernard11||

    If the companies are LLC's owned largely or entirely by Trump the money is flowing through to him.

  • ||

    Yes, but that activity would show up in the hotel's books.

  • bernard11||

    Yes, but when the hotel is owned by a complex set of companies, has tricky financing arrangements, and makes obscure payments you can't get a picture of the owner's financial interest just from the hotel's books.

    Nor do they reflect the ownership. If it's owned by XYZ, LLC you have to know who that is, for example.

  • James Pollock||

    "If the companies are LLC's owned largely or entirely by Trump the money is flowing through to him"

    Not necessarily. Businesses generate revenue (all the money that comes in). Some of that money will be consumed by expenses (it takes money to make money) and whatever is left after that is "earnings" or "profit" but not all earnings are distributed to owners. Some may be retained in the business to pursue other opportunities. This makes the company grow larger, and the stock is worth more, but this is only realized by the owner when the ownership shares are sold or transferred.

    Most growth stocks operate this way... they pay little to no dividends, and instead grow the company bigger by retaining all their profits. Later on, when the company and it's markets mature, the company transitions to an income stock, and pays regular dividends from operating profit. Compare Microsoft to IBM circa 1984.

  • bernard11||

    James,

    Please. No third-grade level lectures.

    I'm talking about LLC's, and was obviously referring to profits, not revenues. And profits accrue to the owner whether they are distributed or reinvested. If my company makes $100,000 and chooses to spend it on expansion that makes my company worth more, which increases my net worth.

  • James Pollock||

    "No third-grade level lectures."

    You're complaining about the simple level of the response, but then you summarize it incorrectly.

    "profits accrue to the owner whether they are distributed or reinvested"
    Accrued profits may or may not be realized. That was the point of the "third-grade lecture" you didn't like.

  • steeltown lad||

    I'm afraid you really don't understand.

    LLC's are pass-through entities. Profits, gains, and losses "flow through" to the owners. Money may, or may not, "flow through" to the owners and it may flow through even if the company has not realized a profit. However, even if Company A is owned by Trump then revenue from a forbidden person arguably benefits Trump, if only by decreasing a loss that the business would otherwise incur. This would also be true if the company holds onto the money or invests it in the business, whether wisely or unwisely. Any revenue in theory affects the value of the business and therefore benefits the owner. What you, and this judge, are saying, is that it is it is a violation of the Foreign Emoluments clause for an officer of the US (however defined) to have an ownership interest (which would include shares, mutual funds, ETF's, LLC's) in any business entity which receives any revenue from a foreign state actor (however defined). Good luck with that!!

  • James Pollock||

    "What you, and this judge, are saying"

    I think it is you who don't understand. Or didn't understand, when I laid out my guess of how this case comes out, however many hours ago that was when there were only a couple dozen comments posted on this article.

  • steeltown lad||

    I continue to be amused by the fervid desire of Post to see Trump's T/Rs, but I fail to see how this ruling gets him any closer. Let's say Trump owns a hotel (the "Trump Hotel") . This we already know from his financial disclosure. The hypothetical is that a "representative of a foreign government" (however defined) rents a room, or has a meal, or buys a soft drink at the concession stand in the lobby of, the Trump Hotel. Let's also assume that the foreign rep pays fair value for the meal, etc...although that doesn't really matter, as long as he pays greater than zero. Trump Hotel therefore has revenue from the transaction. Trump benefits from the (gross) revenue whether or not Trump Hotel has made a profit from the transaction and whether or not any portion of Trump Hotel's profits are distributed by whatever means to Trump himself in any calendar year. Trump Hotel has made more money, or lost less money, than it otherwise would have done, due to the treasonous Emolument-y transaction, which benefits Trump as an owner, whether or not any form of income, rent, profit, dividend, or increased depreciation deduction were to be ferreted out on Trump's T/R. Of course the next step is for the federal judge to sniff around in order to discover whether the meal was priced at Belpw Cost (using no doubt sophisticated cost accounting) in which event it wouldn't be an Emolument, it would be a Bribe!

  • James Pollock||

    " Let's also assume that the foreign rep pays fair value for the meal, etc...although that doesn't really matter,"

    Yeah, it kinda does.

    If the foreign government "accidentally" settles the bill by wiring $50,000,295 to Mr. Trump's offshore bank account, and leaves a VERY positive Yelp review in which the hotel guest expresses hopes of being able to come back real soon, if negotiations work out,

    Does it make a difference if:

    1) Trump returns the entire amount, with instructions to send $295 to the hotel.

    2) Trump keeps $295, returns the rest, and the hotel claims $295 of revenue

    3) Trump just leaves the $50M where it is, and says nothing about it

    4) Trump forwards $50M to the U.S. Treasury, reports it as a gift from a foreign government.

    5) a combination of 3 and 4. Trump says nothing about the transfer, then a bank employee asks publicly about it, and then all of a sudden Rudy is announcing that #4 was the plan all along on every TV news show he can get on.

  • Toranth||

    First, control the dictionary. Once you can redefine words at will, then laws can be use on anyone at anytime.

    The argument is absurd, the standing claim beyond weak, and it all ignore centuries of history. George Washington performed a great deal of business in office, much of it with foreigners. He, in fact, requested and received help from the British government in renting out Mount Vernon when he needed money during his terms!

  • NOVA Lawyer||

    You didn't read the opinion, apparently, because the dictionaries are most decidedly in favor of the Plaintiffs' position and against the President's position.

    The opinion also addresses the "centuries of history" and George Washington's practices and does so convincingly. The fact that you talk about business with "foreigners" betrays that you miss the point. The clause deals with receipt of emoluments from "any King, Prince, or foreign State", i.e., a foreign government or government official.

    Starting with the premise that it "is absurd" that the Founders would have been concerned about foreign governments influencing the President (and other officeholders) by patronizing their business (perhaps at inflated rates) is likely to lead you astray. The Founders may or may not have intended to prevent such influence, but it is hardly absurd to think the Founders might have been wary of a President transacting significant business with the King of England. What do you see as the difference (in the type of influence that concerned the Founders) between, say, Vladimir Putin buying the rights to Trump's biography for a large sum (a common commercial transaction which you seem to argue would be just fine) and a foreign government just giving him a couple hundred thousand dollars (obviously prohibited)?

  • Toranth||

    NOVA, you miss the point entirely: The Founders knew that the President was doing personal business with the government of Britain and DID NOT CARE. It was not considered an "emolument".

    This opinion cites no dictionaries (despite what you claimed), but instead relying on a excessively broad meaning provided directly by the plaintiffs, and then expands it to infinity. "Any program, gain, or advantage" "directly or indirectly" benefiting a person can be something as simple as an endorsement, or holding shares in a mutual fund that has foreign government investments... or investors.

    Your theoretical biography payoff (which I never commented on, so your view of my opinion is pure BS) would not be an emolument, although it might be bribery. If Congress felt it was, then they should proceed with impeachment. Since, as I'm sure you know, that is explicitly called out as one of the reasons for impeachment.

  • James Pollock||

    "The Founders knew that the President was doing personal business with the government of Britain and DID NOT CARE. It was not considered an 'emolument'."

    Or, thus throwing this out there, maybe they just didn't have any doubts about Washington's loyalty to the United States over Britain.

    You're looking at a case of prosecutorial discretion, and letting it color your interpretation of the underlying law.

  • Toranth||

    Do you have any evidence for the claim that Congress knew that Washington was deliberately violating the Constitution, the very basis of the very fragile republic he spent to much to help found, and yet chose to ignore it?

    Perhaps a speech by Congressman, or a grand jury statement? A bill of prosecution that was rejected? No?
    Or maybe you are pulling something out of your... imagination?

  • James Pollock||

    "Do you have any evidence for the claim that Congress knew that Washington was deliberately violating the Constitution"

    You're asking ME to back up YOUR claim?

    "Or maybe you are pulling something out of your... imagination?"

    This claim that is a direct quote of your comment came out of MY... imagination?

    You're... not real?

    Whoa.

  • NOVA Lawyer||

    Toranth,

    Putting rank speculation in ALL CAPS does not transmogrify it into fact. You don't know if they cared. Plus, why didn't Trump's attorneys cite this important example of yours? Is it even true? Based on the following example of your complete unfamiliarity with the difference between truth and falsity, I doubt it.

    "This opinion cites no dictionaries (despite what you claimed)."

    In fact, the opinion cited multiple dictionaries, for example see page 22:

    Plaintiffs contend that the most common definition of emolument at the time was "profit," "gain," or "advantage." Pls. Opp'n at 31 (citing 1 Johnson, A Dictionary of the English Language (6th ed. 1785); Bailey, An Universal Etymological English Dictionary (20th ed. 1763)). Indeed, they cite an article by Professor John Mikhail of Georgetown University Law Center in which, following exhaustive research, he concluded that "every English dictionary definition of 'emolument' from 1604 to 1806" includes Plaintiffs' broader definition. Id. (citing John Mikhail, The Definition of "Emolument" in English Language and Legal Dictionaries, 1523–1806, 1–2 (June 30, 2017), https://ssrn.com/abstract=2995693). Moreover, say Plaintiffs, the word was often used in this broad sense by drafters of State constitutions, by Blackstone, by Supreme Court Justices, and by the Framers themselves. Id. at 31-32 (citing...yada yada...

    Your fact-free comments can be safely ignored. Good day.

  • notFrye||

    Also fact-free? The 'but Pres. Washington had businesses...' argument was made by POTUS, however that talking point does not appear to have supporting evidence (Opinion, page 37-38): "Though the President places much emphasis on the fact that many of the Framers and early Presidents maintained private businesses that "likely" transacted with foreign and domestic governments, he offers no evidence confirming this in fact to have been so. In any event, it must be remembered that the Emoluments Clauses only prohibit profiting from transactions with foreign, the federal, or domestic governments; they do not prohibit all private foreign or domestic transactions on the part of a federal official. Absent the least evidence that early Presidents maintained businesses involving foreign and domestic governments, the President's argument in this regard, even if theoretically relevant, is based wholly on speculation."

  • NOVA Lawyer||

    NotFrye,

    That is another great point. People keep saying it, but nobody cites any evidence confirming that was actually the case. Whether mistakenly or intentionally, they fail to distinguish between international commerce and specific business transacted with a government or government official.

  • Scarecrow Repair & Chippering||

    I've never understood the utility of looking at Trump's tax return except as a matter of nosiness. Obama came out of the WHite House with a lot more money than he earned; it would be interesting to see who paid him while in office or shortly after. Same with Hillary and her slush fund. Bush 43 already had enough Saudi money, everyone knew that, so the only surprises would have been seeing how much of it came from daddy bailing them out for Gulf War I.

    Trump? How do you bribe a billionaire?

  • James Pollock||

    "Trump? How do you bribe a billionaire?"

    Step 1: Promise not to let on to his fan club that you know he's not actually a billionaire.

  • Brett Bellmore||

    I guess Forbes is part of his fan club, they're convinced he's a billionaire.

  • Joe_JP||

    A Washington Post piece (" Trump lied to me about his wealth to get onto the Forbes 400. Here are the tapes.") is informative here. But, it's neither here or there on some level.

    The idea very rich people can't be under pressure by various people who are key to their wealth is silly and experience from ancient times show that rich people can be bribed or blackmailed.

  • loveconstitution1789||

    And government officials can be bribed or blackmailed even without actually doing something bad or having financial conflicts of interest.

    Today, you could make something really bad up and have some believable fake evidence to destroy a politician's standing.

  • Headache||

    ^This^

    I know, what about the 77,000 Obama books Secretary Clinton bought via the State Department and proceeded to give away free overseas. It was reported Obama donated the proceeds to charity.
    That would equal misuse of funds by Clinton, theft of taxpayer funds by Obama.

  • James Pollock||

    First rule of "whataboutism".
    The fact that someone else does something wrong, is NOT an excuse for wrongdoing.

    When you keep this in mind, a lot of whataboutism is wasted effort.

  • y81||

    So that doofus who said you couldn't complain about the mote in your brother's eye unless you first did something about the plank in your own was wasting his effort?

  • NOVA Lawyer||

    y81 and Ben,

    Are you suggesting James Pollock (or the DC attorney general or the Maryland attorney general) has previously gone on record regarding the decisions of personnel within the State Department (possibly including Hillary, but definitely not including Obama) to buy Obama's book? Otherwise, whence the hypocrisy?

    Unless you have such evidence of James' or DC's or Maryland's prior statement, all you are engaging in is whataboutism. James Pollock, DC, and/or Maryland are not responsible for everything every Democrat has ever done. In fact, James even implies that he believes the State Department buy was wrong. You don't understand hypocrisy, obviously.

    So, back to the issue: How do you bribe a billionaire? You mean the one who used his charity's money to pay a $7 boy scout fee for his son. That billionaire? I think the question answers itself.

  • Ben of Houston||

    It's not whataboutism if you are accusing someone of willful hypocrisy.

    The interpretation being presented is so broad as to be patently absurd. It would grip many, many of our past presidents, even without the reaching interpretations of some of these commenters. At the very least, Washington and Jefferson would definitely be in violation.

  • Stephen Lathrop||

    Ben, have you read Ron Chernow's biography of Washington? I think it's kind of the standard now. One thing I remember is about Washington avoiding tobacco, because he concluded it depleted his soil. Maybe that's not inconsistent with your claim above, but I wonder what sources you are relying upon.

  • James Pollock||

    "It's not whataboutism if you are accusing someone of willful hypocrisy."

    I mean, unless it is, of course.

    Here's a blatant case of whataboutism, if entirely imaginary on my part.

    Suppose the defense lawyer for McVeigh and/or Nichols tried it. Sure, my client blew up a building and killed a couple of hundred people, many of them children in the on-site daycare. Sure, that sounds bad. But what about the al-qaeda terrorists, huh? They blew up TWO buildings and killed thousands!

    It doesn't matter what you're "what about"-ing. If you're trying to shake off culpability for your own wrongdoing, pointing out someone else's real or imagined wrongdoing doesn't actually make you any less guilty.

  • Brett Bellmore||

    Screaming "whataboutism" is just the left's way of prohibiting putting their accusations in context. They want to be able to accuse people of things they're just as guilty of, without anybody being allowed to point that out.

    "Your shit stinks!"

    "Well, duh. So does yours."

    "Whataboutism!"

  • James Pollock||

    "Screaming "whataboutism" is just the left's way of prohibiting putting their accusations in context. They want to be able to accuse people of things they're just as guilty of, without anybody being allowed to point that out."

    So your response boils down to "whatabout when the left does it???"

    To use your WONDERFUL example, if your shit stinks, own it. Whining about "the left"'s stinky shit does not make yours any less aromatic.

  • NOVA Lawyer||

    Brett,

    Your example is shit, not least because you frame it as shit = shit.

    Only here, the issue is that Trump should release his tax returns. Obama did release his.

    It is whataboutism to pivoting to: "Well, someone in the State Department (or at an Embassy) did something questionable that maybe benefitted Obama."

    A better analogy preserving your stinky shit metaphor:

    "You just dumped a pile of shit on our dinner table."

    "Well, the maid you hired didn't clean out the microwave!"

    "Um, not really the same thing. I'll talk to the maid, though. Now, about that shit of yours......"

  • BillyG||

    Pointing out your definition of something snares everyone in history shows the consequences of a ludicrous definition. Therefore showing it cannot reasonably be correct as opposed to an example of wrong doing.

  • DavidTaylor||

    As long as we're indulging in what-aboutism, remember that the State Department also bought copies of George W's book Decision Points, and there is a much longer history of State buying books by the president as embassy gifts.

    I'm also puzzled at why you think that royalties received by Obama for the sale of books -- to anyone -- would be "taxpayer funds"? His publisher might be guilty of theft of taxpayer funds, but I doubt that Obama would be.

  • ReaderY||

    Suppose that a visa to enter a foreign country cost $10, but holders of diplomatic passports get in free. Emolument?

    Now suppose that the President pays the $10. Emolumument?

    Under the broad reading expressed in the opinion, it doesn't seem to matter whether the President pays the $10 or not. As long as the right to enter another country is considered something of value, then receiving it whether free or at full price would be considered receiving an emolument.

    Since it violates the Constitution for the President to receive the legal right to enter country whenever that right is considered something of value, a U.S. President can never enter a country that ordinarily charges for the right to enter while in office. The Emoluments Clause prohibits it. Same with receiving a drivers license or permit or anything else for which the government of a foreign country ordinarily charges a fee, whether free or paid for.

    What, if anything, is wrong with this analysis?

  • NOVA Lawyer||

    ReadyY,

    From the opinion: "Executive branch precedent and practice have clearly and consistently held, apart from de minimis instances,that both Emoluments Clauses prohibit Presidents from receiving any profit, gain, or advantage from foreign, the federal, or domestic governments, except in the case of the Foreign Clause, where Congress approves."

    $10 is de minimis. If the fee was not de minimis, surely Congress would approve. I don't think that is onerous to require Congressional approval. (And, probably, ordinary diplomatic privileges to travel for official business probably wouldn't qualify anyway. But even assuming they do, you have your answer.)

  • Brett Bellmore||

    Except that the practice has always been in regard to gifts, not ordinary commercial transactions. That's where the court goes wonky, they're refusing to distinguish exactly what's at controversy: The difference between being given something, and just getting paid in the ordinary course of business.

    Which, again, has a long history going back to Washington, with nobody screaming "emoluments!"

  • Joe_JP||

    History was provided and the text is not just about "gifts."

    Some blatant example of being business partners with a king or something can be proposed.

    Broad open-ended language is suddenly - compare 1A and 2A -- is being read narrowly. Speech was narrowly protected for a long time too but you don't want that apparently.

  • NOVA Lawyer||

    Brett,

    The judge did address the distinction you are trying to make and gave lots of evidence (dictionary definitions, usage by Founders, legal usage, purpose, the text, etc.) for rejecting your interpretation. Like the OP, I found it convincing.

    Shorter: what Joe said.

  • ReaderY||

    The court seems to have made an error problematic in a strictly adversarial system. The judge assumed that either he must accept the plaintiff's extremely broad definition of an emolument, or it must accept the President's extremely narrow one. Because accepting the President's definition as pretty much limited to bribery leads to an inconsistency with the Impeachment Clause (since bribery is an impeachable offense, why would Congress want to permit it when done by a foreign power?), the plaintiffs' position must be accepted.

    That way lies the abyss of extremes. The Court should have independently considered positions in between.

  • NOVA Lawyer||

    The judge made no such assumption.

    What is your "in-between" proposal?

  • Bill Poser||

    Ronald Reagan received a pension from the state of California for his service as Governor while President of the United States. Under a broad definition of "emolument", that would appear to violate the domestic emoluments clause. As far as I know the Supreme Court never ruled on this. Does Reagan's pension provide evidence against a broad construal of "emolument"?

  • NOVA Lawyer||

    There was a government legal opinion on this and it was deemed to fall outside the Domestic Emoluments Clause because he had "vested" rights in the pension prior to becoming President. In other words, he had earned it prior to becoming President. (Of course, the opinion was not a judicial pronouncement, so the Supreme Court isn't bound by it, but that is how it was handled.)

  • bernard11||

    Yes. He was just being given money that was already, in effect, his.

  • FlameCCT||

    Yet y'all are claiming that Trump does not have "vested" rights in receiving funds from his own business.

    BTW: Good luck showing how the slim profit made from a hotel room leads directly to the owner's pocket as an Emolument. LMAO

  • EscherEnigma||

    Timing matters.

    Reagan "earned" his pension as governor. It paid out while he was president, but he didn't "earn" it as president.

    Trump's situation is different as he continues to "earn" his hotel income, and so the payments are being "earned" while he is president.

  • James Pollock||

    "Good luck showing how the slim profit made from a hotel room leads directly to the owner's pocket as an Emolument. LMAO"

    When you finish laughing, you'll probably realize that you're mixing two different arguments here. One is that the emolument is so small as to be not worthy of judicial attention (if only there were some kind of Latin term that meant exactly that) and secondly that the emolument isn't an emolument at all.

    Figure out which of the two approaches you really want, and flesh it out. Although the "it's not an emolument at all" argument was advanced by professional attorneys, and supported by research and argument, and failed to convince the jurist, should influence your line of argument.

  • steeltown lad||

    It doesn't have to be "profit" it just has to be revenue. According to your theory. And it doesn't have to go into the "owner's pocket" in any sort of direct way, and certainly not in any way that would be picked up by a tax return. What your interpretation is, is that a US officer is in violation if he holds an ownership interest, however small or indirect, in any business entity that receives revenue from any foreign state actor. BTW you keep harping on the de minimus carve out, which I would point out doesn't exist in the constitutional text.

  • James Pollock||

    "According to your theory...."
    "What your interpretation is..."

    Please tell ME more about MY theoretical interpretation. I'm pretty sure you're pulling it out of your ass, but I'd like to be sure before I call you on it.

    " BTW you keep harping on the de minimus carve out, which I would point out doesn't exist in the constitutional text."

    I hate to tell you this, but it does, in fact, exist in the Constitutional text. The procedure for impeachment is spelled out, but it doesn't say "for every violation, no matter how trivial", it says "for high crimes and misdemeanors".

  • steeltown lad||

    Geez, bad language!

    I hate to tell you this, but the Foreign Emoluments Clause does not set forth a de minimus exception ("any...of any kind whatsoever"). You are just using the concept to keep your argument from being even more risible. And since you were replying to a comment that stated (and you quoted) "the slim profit made from a hotel room" and stated that "the emolument (sic) is so small..." you certainly did indicate that the emolument was the profit, however small. Please don't try to weasel out of either point, it's unseemly.

  • James Pollock||

    Ah. Now we can proceed.

    You're pulling "my argument" out of your ass.
    You don't know what it is, so you've just picked one you don't like and decided to attack it like it was mine.

    ***bad language alert***
    fuck off with that
    ***end bad language alert***

    "I hate to tell you this, but the Foreign Emoluments Clause does not..."
    Nor did I claim it does. I said the "Constitutional text" does. And it does.

    "And since you were replying to a comment that stated (and you quoted)..."
    ***bad language alert***
    Dipshit, do you not understand how quotations work?
    ***end bad language alert***

    " you certainly did indicate that the emolument was the profit,"
    No, jackass. I indicated that someone else said that.

  • NOVA Lawyer||

    steeltown lad,

    the Foreign Emoluments Clause does not set forth a de minimum exception in the text, but it is recognized by the Courts to avoid absurdities. (A bottle of water at a meeting, etc., nobody thinks these things are Constitutional violations because they are de minimis.)

    But, if you want to be a stickler for abiding by the express terms of the text, then, yeah, Trump definitely loses. It is only if you interpret the term emoluments differently than the Founders used it in their non-Constitutional writings, than Blackstone used it, and than dictionaries defined it at the time, that you can side with Trump.

    And we'll have to see how "small" the profit on a room (or suite of rooms) for a visiting dignitary is by looking at the financial records, won't we? I assume a $1500/night room makes a significant profit, particularly when rented for multiple nights and/or multiple occasions and/or multiple rooms. Even the cheapest $400/night room would likely turn a nice profit.

  • loveconstitution1789||

    Congress could have consented if the issue ever came up.

  • James Pollock||

    Coulda.

    Probably woulda.

    But didna.

  • AmosArch||

    Presidents should be forced to release any and all documentation relevant to their qualifications and ability to perform in their office. So just like when Obama was forced to release all his academic transcripts I'm glad Trump is finally being taken to task as well.

  • Smooth Like a Rhapsody||

    Obama released his transcripts?
    When?

  • Morbo||

  • NOVA Lawyer||

    Amos: Taking whataboutism to levels of stupidity never before seen!

    Foreign payments and tax returns? What about grade school transcripts?!?!

  • FlameCCT||

    Foreign payments and tax returns vs. claiming to be a foreign student attending college.

    Kinda reminds me of Lieawatha Fauxcahontas getting a job based on her Native American heritage.

  • NOVA Lawyer||

    An impressively erudite comment. Speaking of grade school, it's especially hilarious how you make a funny name.

  • regexp||

    How old are you? 12?

  • santamonica811||

    Oh, snap! It's funny, because you spelled Clinton with a "K," and changed 'Obama' to "Obongo." Know what else starts with a K? The KKK! And you've now compared Clinton to the KKK. Brilliant! And you've changed Obama's name, to make it sound roughly African. Spot on!!! That is some serious and multi-layered humor you've got going on.

    The best part is that it makes you extra credible. And not at all a racist or a sexist piece of shit.

    Nicely played. Nicely nicely played.

  • Careless||

    As stupid as these names/this sort of name-calling are/is, sexist?

  • James Pollock||

    That's established by prior testimony.

  • Careless||

    Learn to read. The post clearly suggests that this suggests he's a sexist.

  • James Pollock||

    Y'all are lecturing me about reading? Call back when you've mastered the skill.

  • OtisAH||

    Hey, at least he made it through an entire post without graphically describing his fantasies of having anal sex with men. Er, I mean his "dislike" of such things. Silver linings!

  • James Pollock||

    You are the one endlessly exercising your fundamental human right to talk about gay sex. You know who's really, REALLY interested in gay sex? Gay people.

  • DjDiverDan||

    Let us just assume, for the sake of argument, that a case can be made for Trump's violation of the Emoluments Clause (or clauses). Fine. What is the remedy? It can't be removal from office; that can only be accomplished by Articles of Impeachment duly adopted by the House of Representatives and after conviction by the Senate. So removal of Trump from office is off the table. And it can't be a criminal conviction - even assuming, for the sake of argument that a sitting President can be tried by a court for a crime prior to impeachment (which is not free of doubt), there is no criminal statute in Title 18 of the U.S. Code which covers this, making receipt of a foreign emolument a crime. A civil penalty? What, deprive him of the income from his owned property? Does anyone else see a Fifth Amendment takings clause problem with that? And the Supreme Court has opined that, in an appropriate case, a judicial decision might constitute an unconstitutional taking. So what is left? A purely advisory opinion? "Dear Congress, this Court has concluded that President Trump has violated the Constitution's Emoluments Clause, and we think you should do something about it." But advisory opinions are prohibited by Article III's case or controversy requirement. So, what judicial remedy is left? And without a judicially enforceable remedy, isn't the issue nonjusticiable?

  • James Pollock||

    " What is the remedy? It can't be removal from office; that can only be accomplished by Articles of Impeachment duly adopted by the House of Representatives and after conviction by the Senate."

    The remedy is impeachment by the House of Representatives and trial by the Senate. Says so right in the Constitution.

  • DjDiverDan||

    BUT, that is NOT a judicial remedy. The Court hearing the case has absolutely no authority to order the House of Representatives to adopt Articles of Impeachment, and no authority to order the Senate to try the President, much less convict. So, anything the Court does in terms of recommending impeachment is nothing more than an advisory opinion - something Courts have no power to do under Article III. Thus, without a remedy that the Court can order which actually alters the rights or obligations of the parties, the case is nonjusticiable.

  • James Pollock||

    "BUT, that is NOT a judicial remedy."

    You're quick.

    "The Court hearing the case has absolutely no authority to order the House of Representatives to adopt Articles of Impeachment,"

    Mind pointing to where I suggested they did?

  • Careless||

    He asked what the remedy from the court was, and you brought up something completely irrelevant, then suggest he can't read.

  • James Pollock||

    I quoted exactly what he said. You're seeing something that isn't there, and from there, concluding that *I* have a problem with reading comprehension.

  • jph12||

    No, you quoted part of what he said. He also said this: "So, what judicial remedy is left? And without a judicially enforceable remedy, isn't the issue nonjusticiable?"

    It's helpful to read the full post before responding.

  • James Pollock||

    "No, you quoted part of what he said"

    I quoted the part that was relevant to the response that followed.

    "He also said this"

    And I didn't quote that, because it was not relevant to the response that followed.

    "It's helpful to read the full post before responding."

    It's also helpful to think about what you read before responding. Give it a try, you'll see.

  • jph12||

    You are a complete and utter moron.

  • James Pollock||

    "You are a complete and utter moron."

    So... you're not quite as smart as a complete and utter moron?

    At least you're smarter than Careless over there, so you got that goin' on.

  • DjDiverDan||

    I take it that you are not a lawyer. Or at least not a competent lawyer.

  • James Pollock||

    I take it that you're a high-functioning idiot who has trouble reading.

  • DjDiverDan||

    Your comment would really hurt my feelings - if I had one ounce of respect for your opinion. Thank God that I don't.

  • James Pollock||

    Ooh, that zinger stung.
    Call back when you can think up a real answer.

  • FlameCCT||

    Poor James living up to his/hers/its last name, a Fish. Continually falling for Progressive hook, line, & sinker, every time!

  • James Pollock||

    If you're going for the zingers, try to get past the ones that weren't old when I was in third grade, and heard them the first time.

    I mean, "lame" IS right there in your chosen appellation, so I shouldn't expect much more, but the promise of the Internet is running into people who have new and different ideas, even as the reality is that, well, most of them are lamers.

  • loveconstitution1789||

    The remedy is Congress consenting to the payments to Trump Hotels.

    Makes the lawsuit moot.

    This is not rocket science people. The Lefties will lose....again.

  • James Pollock||

    You're assuming the folks currently running Congress can hold it together to actually DO, well, anything.

    It's not technically impossible, but it's not the way to bet, either.

  • David Post||

    It's a good question, but I don't think it renders the case non-justiciable. If the court finds that these payments are prohibited emoluments, it issues an order saying: Stop receiving these payments; you have 30 days to comply. There are lots of things Trump can do to comply; the Trump Hotel can refuse all payments from foreign governments; the Trump Organization could sell the Hotel; the Hotel could segregate all payments from foreign governments and pay all profits to the US Treasury (or, I assume, to a charity of Trump's choosing). Trump might ignore any such order - but that doesn't mean it's not a justiciable controversy with a meaningful remedy for the violation.

  • James Pollock||

    The court could enjoin foreign governments from paying money to Trump's businesses.

    US courts have limited jurisdiction over foreign governments, but, to the extent that they have assets in the U.S., the court has reach. And various treaties and alliances make some US court orders enforceable in other jurisdictions.

  • DjDiverDan||

    BTW, before someone pipes in with "The Court can issue a declaratory judgment!", you better review the case law on the Federal Declaratory Judgment Act. That Act does NOT create Federal jurisdiction, it does NOT create any independent Federal cause of action, and it does NOT relax or eliminate the prohibition on advisory opinions or the requirement that a judicial remedy must actually alter the legal rights and obligations of the parties.

  • Eddy||

    I thought an emolument was what you put on your skin to make it look younger.

  • DjDiverDan||

    Please note that the way this particular Court has defined "emolument", a sitting President is prohibited from investing his own assets in U.S. Treasury obligations, or in the bonds issued by any State, since the interest on any such bonds would be an "emolument" coming from the Federal Government or from one of the states, in violation of the domestic emoluments clause. Also, the President could not invest in the stock of any corporation, such as Exxon, Amazon, Google, Intel, General Electric, or a host of others, if any portion of that corporation's profits is derived from dealings with the Federal Government, any State Government, or any foreign government.

  • James Pollock||

    "Please note that... "

    Noted.
    As the only people that matter to this decision are members of the House of Representatives, and I am not one, what was the point of that?

  • DjDiverDan||

    "As the only people that matter to this decision are members of the House of Representatives, and I am not one, what was the point of that?"

    If, as you now contend, "the only people that matter to this decision are members of the House of Representatives," the point would be that the Maryland Federal Court has NO JURISDICTION OVER THIS CASE. Please forgive the shouting, but I wasn't sure what it might take to get through your dense skull.

  • James Pollock||

    You're shouting at me because you forgot to put any mention of your main point in your original comment?
    This is the Internet, so I'm sure you'll have an explanation for why this is MY fault.

    Of course, your point is nonsense, but now that it's dragged out of you, finally, I find it odd that you think a federal court has not jurisdiction over a Constitutional case. That's not the way it's taught in law school, but those guys a bunch of ivory-tower academics, with rarely any real-world experience. On the other hand, the prof at ours, who taught Constitutional Law and Constitutional Interpretation, was also the acting United States Attorney, so that criticism isn't going to work this time.

    Work this out.
    The only penalties that can be taken against the President of the United States are impeachment and trial in the Senate. That's Con Law I.
    But there are other parties, and they fall under the federal court's jurisdiction to the extent that they have assets in the United States. Those other parties can be enjoined from actions, and those injunctions are backed by the judicial power, not the executive. (Presumably, the executive COULD then deploy the pardon power, but that's a rabbit-hole.)

  • David Nieporent||

    But there are other parties, and they fall under the federal court's jurisdiction to the extent that they have assets in the United States. Those other parties can be enjoined from actions, and those injunctions are backed by the judicial power, not the executive.

    Sorry, but that's all a bit vague for me. You think a federal court is going to enjoin foreign diplomats from staying at a Trump hotel?

  • James Pollock||

    Not at all.
    They're going to enjoin foreign diplomats (and visiting heads of state) from paying any money to Trump's businesses. Mr. Trump can, of course, allow them to play at whichever golf resorts, or to occupy space in Trump Gaudy Office Block, or stay at Trump Overpriced Hotel. But they can't actually give him any money.

  • Brett Bellmore||

    Wait, Trump has hotels overseas. They're going to enjoin foreign diplomats from paying Trump hotels in their own countries? Issue a decision binding on non-Americans outside America?

    Isn't that a bit problematic? I would think the injunction would be against Trump accepting the payments.

    I also think this is going to get struck down pretty quickly on the "But, Washington!" argument.

  • loveconstitution1789||

    I think Republicans in Congress have already spoken with Trump and are prepared to consent to any payments to Trump hotels that might be technical violations of the Emoluments Clause.

    If Congress does that, the lawsuit is moot and Trump 'checks' the Lefties...again.

  • David Nieporent||

    I think Republicans in Congress have already spoken with Trump and are prepared to consent to any payments to Trump hotels that might be technical violations of the Emoluments Clause.

    If Congress does that, the lawsuit is moot and Trump 'checks' the Lefties...again.

    Nope. Under the constitution, congress is only empowered to authorize foreign emoluments -- not domestic ones.

  • David Post||

    I think you're missing the point on this. The court won't enjoin foreign diplomats from paying Trump hotels in foreign countries; it would be enjoining Trump from receiving any such payments. It's a very big difference. They can pay - but Trump can't keep the money.

  • FlameCCT||

    So all Trump has to do is ensure all such payments (profits) go into a trust fund for Barron. Problem solved!

  • jph12||

    "They're going to enjoin foreign diplomats (and visiting heads of state) from paying any money to Trump's businesses."

    Seems like these foreign diplomats might be entitled to a day in court before the court determines where they can pay for spending the night.

    Also, that does not appear to be consistent with the way the court describes the requested relief in its opinion. The court says that the plaintiffs requested that Trump be enjoined from violating the clause.

  • James Pollock||

    "Also, that does not appear to be consistent with the way the court describes the requested relief in its opinion"

    The relief you asked for and the relief you are awarded sometimes don't match up. And sometimes the legal argument you made in your briefing isn't the legal argument that ultimately wins a judgment for your side. Trump lost a motion to dismimss; the judgment on the merits comes after the trial, which is after discovery. I suspect there will be a motion to release documents in discovery under seal, so that Trump doesn't have to release tax returns with such low numbers on it where everybody can see how poorly he managed his inheritance.

  • jph12||

    "The relief you asked for and the relief you are awarded sometimes don't match up."

    I can't think of one, but I'm sure you have lots of examples where a plaintiff requested an injunction against a single person and instead received an injunction against an ill-defined class people who aren't a party to the lawsuit.

  • James Pollock||

    " I'm sure you have lots of examples"

    Duh. All those OTHER times the President was so shifty as to have it be a reasonable assumption that he wanted to be President to advance his own business interests.

  • James Pollock||

    Actual answer:
    You're confusing "what the court could do"... the question I answered... with "what the court should do" or "what the court will do"... which are questions I didn't answer.

    To win the case at the motion for dismissal stage, the President's lawyers would have had to show that there was no possible remedy the court could order. That attempt failed. So, you go to trial on the merits, where, I think, the judgment goes to the President because the proper procedure is impeachment and trial in the Senate.
    The President desperately wanted to win dismissal because it would have precluded discovery, which entails a bunch of prosecutors and their administrative staffs probing financial records, where they might find (gasp) other improprieties. (People with attention spans long enough might remember that the investigation of Bill Clinton came away with articles of impeachment for offenses that happened two years AFTER the investigation was initiated on a topic that ultimately provided no articles of impeachment.) Trump doesn't want anyone who isn't a toady poking through his financial records (assuming he actually has proper business records, which isn't a lock, either.)

  • jph12||

    "You're confusing "what the court could do"... the question I answered... with "what the court should do" or "what the court will do"... which are questions I didn't answer."

    No I'm not.

    This is you saying what the court will do. "They're going to enjoin foreign diplomats (and visiting heads of state) from paying any money to Trump's businesses."

    This is me saying that the court can't do what they say you will do. "Seems like these foreign diplomats might be entitled to a day in court before the court determines where they can pay for spending the night."

  • James Pollock||

    "This is you saying what the court will do."

    No, it isn't.

    "This is me saying that the court can't do what they say you will do"

    Slipped pronoun here?

  • jph12||

    My question wasn't at all limited to cases involving the emoluments clause.

  • apedad||

    "Those of us who harbor serious doubts about our President's integrity and law-abiding nature. . . . "

    EVERYBODY harbored serious doubts about Trump's integrity.

    Ignorant people ignored those doubts and voted for him anyway.

  • Brett Bellmore||

    Everybody sane lacked doubts about Hillary's integrity, only because it was relatively certain she had none. Trump at least made his money in the private sector, he didn't get wealthy on "donations" accepted while in office.

    We didn't ignore our doubts about Trump, we factored them in and considered it on net worth voting for him anyway.

  • David Nieporent||

    Everybody sane lacked doubts about Hillary's integrity, only because it was relatively certain she had none. Trump at least made his money in the private sector, he didn't get wealthy on "donations" accepted while in office.

    Trump's entire career in the private sector -- other than his reality tv show career -- was built on rent seeking.

  • regexp||

    Trump "made" his money by inheriting it from his father and badly investing during his lifetime. His record as a businessperson is abysmal and considering his debt load - it would come as no surprise that foreign powers have some leverage over him.

  • James Pollock||

    He makes his money now by finding a property built by someone else, and letting them pay money to be part of his "brand" and put his name on the front of the building.

  • DavidTaylor||

    "...he didn't get wealthy on "donations" accepted while in office."

    Are you implying that Hillary Clinton did get wealthy on "donations" accepted while in office? That's a fairly bold claim that you really should back up with more details and evidence.

  • James Pollock||

    In PartisanWorld, facts and evidence are superfluous. They don't like her, so we go straight from wild accusation to "Lock her up! Lock her up!", with no intervening stage.

    Tune in 4 years from now, when the roles will be reversed because of election results.

  • DavidTaylor||

    @James: That was my assumption, but, if you are still monitoring this thread, I was curious about what fantasy Brett Bellmore was alluding to.

  • BillyG||

    It is enough that the President directly or indirectly receives money from foreign, the federal, and domestic government officials who patronize his Hotel; the Emoluments Clauses are violated.

    It is a ludicrous definition, and one which still doesn't require his tax returns be released. For the tax returns, they would only show his hotel being the source of income, not where the hotel receieved it from. The hotels financial documents would be the only source of that.

    Second, to the definition, this would ensare every president with investments. Anyone who owns Exxon stock would be in violation (if they were president) due to Exxon's overseas investments and dealing with foreign governments.

  • Michael Ejercito||

    Under the plaintiff's broad interpretation, President Obama violated the Emoluments Clause.

  • James Pollock||

    Quick! Impeach him!

  • Rip Murdock||

    How so?

  • Michael Ejercito||

    President Obama received royalties from foreign public universities due to the sale of his books.

  • Jerry B.||

    Reading the opinion, it seems to me that Judge Messitte had an opinion before he started, and crafted the arguments to support it.

  • Bob from Ohio||

    Just like David Post. No wonder he likes the opinion.

  • FlameCCT||

    I disagree with almost every post by David although I do have to admit he is consistent, consistently wrong ala claiming Houston mayor wasn't violating Constitutional Rights of citizens.

  • damikesc||

    As we say with James Gunn, the Left is going to utterly hate the rules they are developing here.

    This emoluments clause nonsense is utter bullshit.

  • loveconstitution1789||

    I dont want American politicians getting gifts and money from foreign powers in an attempt to corrupt the office.

    With that being said, The Trump Trust runs a hotel in which anyone (including foreigners) can stay.

    Congress can simply consent to the hotel payments being no biog deal and the lawsuit is moot.

  • James Pollock||

    Your faith that the current Congress can simply do anything is... entertaining. You couldn't get these guys to agree on anything except tax cuts for campaign donors and new spending in each member's district are swell.

  • OtisAH||

    Requiring presidents to remove themselves completely from the operations of their domestic and international businesses during their terms is an "unintended consequence" I can absolutely live with. What else you got?

  • BillyG||

    That's nice. Most of us aren't so unreasonable.

  • damikesc||

    Requiring presidents to remove themselves completely from the operations of their domestic and international businesses during their terms is an "unintended consequence" I can absolutely live with.
  • James Pollock||

    Historically, Presidents of the United States have treated the Presidency as full-time work, and not a side gig. This guy thought it would be easier. Or, at least, he said so to a videocamera.

  • loveconstitution1789||

    US Constitution, Article I, section 9:
    [...]
    No title of nobility shall be granted by the United States: and 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.
    [....]

    Congress can simply give their consent.

  • James Pollock||

    You're assuming the current Congress can accomplish ANYTHING. The only thing the majority agrees on is that rich people should have lower taxes, and that's already done.

  • Joe_JP||

    Yes, which helps the challenge, since any concern about it being applied too broadly can be addressed by legislation. Still ...

    Art. 2, sec. 7:

    "The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them."

    Congress giving consent not provided.

    Just to keep in mind that a general principle is involved, there is also Art. 1, Sec. 2:

    "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. "

  • Joe_JP||

    should be: "Article 1, Section 6, Clause 2"

  • EscherEnigma||

    They could.

    They haven't.

  • ||

    If this succeeds, then every future President will be similarly sued starting on their first day of office. It gives strength to the position that sitting Presidents should be shielded from harassing lawsuits and prosecutions until their term is over. I see us heading for a future where every executive decision by every President is instantly challenged in multiple court filings.

    I also object to the effective redefinition of the Article II qualifications of President. Any candidate coming from a business background, inevitably acquires financial entanglements. The liberals would use the emoluments clause to redefine it such that only career politicians, or academics qualify to run. That argument was openly voiced in 2016, that Trump's business ties should have disqualified him because of emoluments. Elon Musk could not run because foreigners might buy a Tesla car, or book a satellite launch on a SpaceX rocket.

  • Kristian H.||

    "Elon Musk could not run because foreigners might buy a Tesla car, or book a satellite launch on a SpaceX rocket."

    or the fact he isn't a US citizen.

  • Kristian H.||

    I meant, natural born citizen. IRRC, he came to US via South Africa and Canada.

  • David Nieporent||

    Just for pedantry, note that the foreign emoluments clause only applies to foreign governments, not foreigners in general.

  • EscherEnigma||

    Nah, there's plenty of financial solutions to the problem. President Trump is/was just unwilling to go that hands-off with his businesses to do so.

  • Joe_JP||

    Many here are quite wary of government power but now many want to narrowly apply multiple limits on government agents, in place to guard against corruption. This is particularly ill advised when applied to the clause that allows Congress the power to regulate. Congress in effect is ignoring its responsibility here.

  • Bob from Ohio||

    "I find its analysis to be awfully persuasive."

    Least unsurprising comment ever.

  • FlameCCT||

    It would have been surprising if he had left off "persuasive". LOL

  • Bob from Ohio||

    "at Trump's tax returns, for example""

    In the first place any returns would certainly be subject to protective orders so the "public" would not see them unless "resistance" AGs illegally leak them.

    More importantly, has Post ever seen a tax return? Tax returns just group categories together.

    Trump gets his income from LLCs so that means K-1s are issued to him personally. Income and gains are merely listed, not broken down by payors to the LLC.

    There is not going to be a line "Received $1,000,000 from Vladimer Putin".

    Here is an article from the left wing propublica that explains it. Note that I broke

    "There's No Guarantee Trump's Tax Returns Would Reveal Russia Ties

    by ProPublica March 9, 2017, 9 a.m. EST"

    [I'd share the link but Reason software does not like them.]

  • James Pollock||

    "In the first place any returns would certainly be subject to protective orders so the "public" would not see them unless "resistance" AGs illegally leak them."

    Trump's reluctance to share his tax returns to the public is based on the fact that his income is currently generated, in part, because people think he's rich. If he's not as rich as he likes to pretend, then the value of his brand declines even further. He considers that a bad outcome.

    The real fear, however, is that, in the hands of regulators who are not toadies, Mr. Trump's business records would reveal any OTHER crimes he's been involved in. The "Resistance AGs" already knew about the fraudulent "Trump University", for example, but how many other businesses does he operate that are based on fraud (or whatever other crimes, real and imagined, that his business records might reveal.)

  • FlameCCT||

    ...(or whatever other imagined crimes, that his business records might reveal.)
    FIFY

  • James Pollock||

    So you're sure you already know about all the real ones?

  • Bob from Ohio||

    "business records "

    We are discussing personal tax returns, not "business records ".

    Your entire attitude reminds me of this:

    "Show me the man, and I'll show you the crime." - Lavrentiy Beria

  • James Pollock||

    "We are discussing personal tax returns, not "business records ".

    Bob, did you learn in accounting school that tax returns aren't business records?

    If you'd have read the whole article, all the way to the end, you'd have run into this half-paragraph:

    "I can't imagine many things he wants less than to have the Attorneys General of DC and Maryland poking around in his financial records. Those of us who harbor serious doubts about our President's integrity and law-abiding nature have believed for a while that he's hiding something in there, and we may be about to find out whether we're right or not."

  • Robert||

    I think you can take Trump's narrower reading, & still think the object was to prevent such payments as possible bribery. For instance, if a foreign official stays at Trump's hotel because of the latter's position as POTUS, i.e. arising out of his official actions, that would seem to be the kind of influence the clause is aimed at preventing.

    So, for instance, Trump carries out some official prez biz that calls for the attendance of a foreign official. Foreign official tries to butter Trump up by staying at his hotel. Seems like an emolument to me, unless the room's provided at no charge.

  • James Pollock||

    Or, let's say a foreign government leader wants to influence President Trump. Let's just make one up in our imaginations, and we'll call him "Vlad".

    Vlad says that his government is very interested in some item that the US government is considering, and, totally unrelated, his government would like to book 50 million hotel rooms, and pay in advance. Under President Trump's lawyers' interpretation of the Constitution, that's totally unremarkable, because the President's companies are already in the business of renting hotel rooms to all comers, so if Vlad wants to rent some hotel rooms, that's entirely unremarkable.

  • Michael Ejercito||

    Tghat deopends.

    What is the rate being paid for the hotel room?

    Was the same deal available to the general public?

  • CCP||

    Apologies if I missed this in some earlier post about this case, but could someone please (seriously) summarize for me the basis for the plaintiffs' standing?

  • FlameCCT||

    None that I can see however David Post rarely discusses that aspect as it weighs against him.

  • CCP||

    Thank you. It is always refreshing to get some validation that you are not totally losing your mind in at least wondering about these things.

  • notFrye||

    The blog post above is about an opinion focused primarily on the meaning of emoluments. There was an earlier opinion on standing: http://www.marylandattorneygen.....pinion.pdf
    The Court's discussion of its reasoning doesn't has a pithy quote, but I think this is the argument which the Court found persuasive (March 28 Opinion, at page 15):
    "With respect to the President's alleged violations of the Domestic Emoluments Clause, Plaintiffs argue that they have been placed in an "intolerable dilemma" in that, on the one hand, they are forced to choose between granting the Trump Organization's requests for special concessions, exemptions, waivers, and the like, thereby losing revenue, and, on the other hand, denying such requests and risk being placed at a disadvantage vis-à-vis other States that already have been or may in the future be constrained to grant such concessions..."

  • kramartini||

    The standing opinion is a mind-numbing 47 pages. However, it can be summarized in one word: Unprecedented. Literally. There is no precedent to support state standing in a lawsuit based on the Emoluments clause...

  • James Pollock||

    Another legal term for "unprecedented" is "case of first impression".

    Trump is the first President to be so readily corruptible and so disinterested in avoiding the appearance of avoiding appearance of conflict of interest as to raise this question.

    He also just locked out a journalist for asking questions he didn't like hearing. Unprecedented!

    He also gave a press conference in which he took the side of a foreign dictator over the side of American law enforcement. Unprecedented!

    He's also a President who got caught indulging in several extramarital affairs. OK, there's precedent for THAT. But evangelicals collectively seem to think it's no big deal. Unprecedented!

  • CCP||

    So the standing argument ain't exactly compelling unless we're back to the days of us v scrap.

    As to your comment, I'll set aside the judge mental polemics, but on a more serious note, this president does raise some unique issues because he may be the first one from industry, and beyond that, an industry where his name was/is literally the brand. This, blind trusts really aren't and can't be.

    Suppose that one of our tech titans became president. Would that mean the USg and it's agencies could not use Twitter, Facebook, Amazon, or the like. Perhaps what this suggests is that the clause should not preclude the continuing use of the presidents businesses on terms comparable to the public.

  • kramartini||

    Yes, Trump being elected President is a lot like Al Czervik being admitted to Bushwood. ("Hey Wang--no offense!)

    But that doesn't excuse judges enabling blatant fishing expeditions by means of creative constitutional interpretation.

  • damikesc||

    I can't imagine many things he wants less than to have the Attorneys General of DC and Maryland poking around in his financial records.

    Sounds like an admission that this entire nonsense is simply a fishing expedition.

  • James Pollock||

    An admission that this entire nonsense is ALSO a fishing expedition.
    Prosecutors are SUPPOSED to look for crimes to prosecute.

    Maybe the results will surprise us all, and the President's business interests will turn out shady but 100% legal.

  • Bob from Ohio||

    State Attorneys General are not generally "prosecutors".

  • James Pollock||

    They are in this country, Bob.

  • kramartini||

    The Texas Constitution gives the Attorney General no general law-enforcement powers; instead it limits the Attorney General's authority in criminal cases to that dictated by statute.

  • rsteinmetz||

    I wonder whether any money paid to any of Trump's businesses can be actually traced to Trump after it is mingled with the vast majority of the money paid which is not subject to even the expansive view of the emoluments clauses. For example if various foreign governments paid at a discounted rate would that be an emolument if the business made no profit on the transaction?

    Also for purposes of this motions shouldn't it be treated more or less like a motion for summary judgment, at least in this instance?

  • James Pollock||

    "Also for purposes of this motions shouldn't it be treated more or less like a motion for summary judgment, at least in this instance?"

    As opposed to what?

    If we treat it as a motion for summary judgment, the motion gets rejected immediately, because summary judgment is only appropriate if there are no questions of fact left to determine. They haven't even waved in the general direction of discovery yet, because the President would very much like to avoid the discovery phase, but it's fairly hard to argue that all the questions of fact are resolved before you take any steps to resolve them.

    The President's lawyers took a stab at establishing a beneficial definition of the law, that would have potentially ended the proceedings near the start. It didn't work. They'll have to establish that the outcome their client would prefer is the correct legal outcome through normal procedure. That's what they get paid for, they'll have to earn it.

    Unless Congress decides to pop in and short-circuit the litigation with a shiny new statute.

  • Amateur Lawyer||

    I reviewed the decision. Beyond the obvious issue, where the lawsuit is a means to "get ahold of Trump's tax returns, " presumably for public release and/or leaking (which, in many ways, is a misuse of the law), the issue is the de minimus clause. What EXACTLY qualifies as de minimus? $1? $10? $100? $1,000? $10,000? A % of income? Because, as the judge has defined this, that de minimus clause is very much going to come into major effect.

    The issue here is, the foreign emoluments clause is not limited to the President. It applies to "Any person holding an office or trust" That will include, at a minimum, every senator, congressman, federal judge, ambassador etc. To a major extent, it will include every federal employee.

    Now, one of the "parade of horribles" used by the Trump team that every mutual fund and international stock holding would open up these people to violations of the foreign emoluments clause. Keep in mind, that no quid pro quo, no "appearance of conflict of interest", nothing was required beyond "any profit, gain, or advantage, of more than de minimis value, received by him, directly or indirectly, from foreign, the federal, or domestic governments." The judge nicely rolled h under the table issues with stocks and mutual funds with that de minimus clause.

  • Amateur Lawyer||

    But should he have?

    Let's take a case example:

    The Dow Jones Industrial Average includes a number of major international companies. Let's focus on 3 of the 30 for example. Pfizer, Merck, and Boeing. Pfizer is a global company. In 2018, they brought in 8.5 billion dollars in revenue (~20% of their revenue) from "Developed Europe". Given Europe's current structure, the vast majority of this revenue was acquired from FOREIGN STATE AGENCIES. This includes the National Health Services, for example. Merck has the same example. Boeing faces a similar problem. Billions in military sales to foreign governments, or commercial jets to foreign governments. ~20% of revenue directly from foreign states is a reasonable initial estimate

    So, for the DJIA, we're looking at 20% of revenue for 3 (of 30) companies, or about 2% of total revenue. (For our purposes, we'll limit it to just these three) If a federal employee was to "just" invest in an index fund (IE, the Dow Jones Industrial average), they'd be pulling in 2% of their revenue from foreign governments. Is this "de minimus?"

  • Amateur Lawyer||

    If you say "it's just 2%," you need to make the same calculation for Trump's hotel. And the foreign state revenues THERE would be less than 2%. If you start arguing dollar value, that adds up nicely as well. Let's take a nice federal judge who made $200,000 in retirement savings. Assuming they just invested in an index fund, that means they got $4000 from foreign state actors. Is that de minimus? Almost assuredly not. If a foreign state slipped $4000 directly to a judge, that would be considered a non-minimal amount.

    Once again, even if it's indirect (IE through a mutual fund), it doesn't matter. Even if your assets are in a blind trust….it doesn't matter. You obtained gain (even though you didn't know about it), from a foreign government. That is the logic applied here.

  • Amateur Lawyer||

    Indeed, the framework of the word "indirect" may prove even more troublesome in the emoluments clause. While it could easily apply to "just" corporate ownership, and gains via that corporation, it could in theory apply 2nd order indirect relationships. For example, ownership in ventures that have a significant financial relationship with a foreign private corporation, which in turn have significant dealings with foreign governments. Such an indirect "gain" would effectively bar federal employees from investing in most, if not all, US corporations.

    No, this type of extreme interpretation cannot be what the founders envisioned for the emolument clause. The clause is extremely broad and sweeping. The judge's interpretation of that clause would be even more encompassing and smothering. Realistically, in addition to the text, we should rely on the founder's intents and the clause's application in law.

  • Amateur Lawyer||

    The Clause was intended as an anti-corruption statue. It was intended so that foreign governments do not adversely affect or corrupt our government officials with "gifts" "deals" and other items. It wasn't intended to eliminate the ability for previously owned businesses to be able to continue to work in an international marketplace. So, in interpreting the clause, we need to ask.

    Did a handful of foreign guests staying at a hotel that Trump owns provide a reasonable possibility of "corrupting" him? The answer needs to take a few things into account. Fiscal need, relative benefit to current income, alternative sourcing, any quid pro quo arrangement, and so on. Ultimately, it's a fiscal question. The business in question had roughly $100,000-$200,000 worth of foreign state revenue. Of that revenue, a very optimistic profit margin (the actual gain) is ~20%. So $20,000 - $40,000. A sizeable amount (assuming that the rooms couldn't have been sold otherwise). And if it was Mr. Trump's only business, perhaps a case could be made. However, it is not Mr. Trump's only business, and that makes a significant difference.

  • Amateur Lawyer||

    Mr. Trump has net worth currently valued at USD $3.1 Billion. $40,000 represents 0.001% of his net worth. Does that amount, through a business interest, represent a reasonable potential corrupting influence? Let's put this in a different context. Currently a US Supreme Court Judge makes $268,000 a year. 0.001% is $2.68 If a representative of a foreign government was to comp a judge a cup of coffee, would that be a corrupting influence? No, it's absurd. Likewise, an extremely minor fiscal interaction by a foreign government, in a company that Mr Trump has ownership of, which would in general happen anyway (if he was or wasn't president) would not be considered corrupting.

    So, we're left with two standards. On one hand, we have an extreme interpretation, which if properly applied, would likely result in the violation of the foreign emoluments clause by nearly every major federal employee. Such broad stock ownership, and the thousands of dollars of revenue that result, cannot be brushed under as "de minimus". Or, if the clause is properly applied, as it should be, as an anti-corruption clause, such minor business dealings cannot possibly be considered animus for corruption.

  • James Pollock||

    "Mr. Trump has net worth currently valued at USD $3.1 Billion. $40,000 represents 0.001% of his net worth. Does that amount, through a business interest, represent a reasonable potential corrupting influence?"

    You're talking about a guy who found a way to get someone else to pay his kid's $7 scout membership fee. So... yeah, probably, $40,000 might do it. That's almost 30% of a pornstar payoff, after all.

  • Amateur Lawyer||

    An extraordinarily biased opinion you seem to have. If $40,000 through a business interest would do it (Something Trump regularly lost or gained in a few hours), why not a cup of coffee?

  • James Pollock||

    "An extraordinarily biased opinion you seem to have."

    Mr. Trump's aversion to truth justifies treating him as someone who is averse to truth-telling.

    This isn't bias. It's recognition of fact.

    " If $40,000 through a business interest would do it (Something Trump regularly lost or gained in a few hours), why not a cup of coffee?"

    Why not indeed. The guy lies reflexively, and has a strong history of being extremely cheap at others' expense. How much does it take to corrupt him? Is the dollar value in the single digits?

  • James Pollock||

    "If you say "it's just 2%," you need to make the same calculation for Trump's hotel. And the foreign state revenues THERE would be less than 2%"

    How do you know this, prior to seeing any of the business records of any of the legal entities in question?

    It's a matter of leverage. If, say, the King of Saudi Arabia wants to affect changes in U.S. policy, does placing an order for $50 million worth of jets swing the President's attention? Heck no, most of the money goes to other people, many of them not even Americans. But if he reserves $50 million dollars worth of membership in Trump Sandy Acres Golf Resort, the $50 million is not shared with millions of other shareholders. See how these are different?

  • Amateur Lawyer||

    The short, realistic answer is, that much money does not move around without notice being taken. If the King of Saudi Arabia places an order for $50 million of resort membership, records are filed, money is transferred, and items come out.

    The slightly longer answer is you appear to be concerned that such a transfer would be done in "secret". IE, without the fiscal records, we wouldn't know about it, and the "bribe" goes under the table. However, the exact same issue would come up with literally every other federal employee that might be "bribed" in such a way.

  • James Pollock||

    "The short, realistic answer is, that much money does not move around without notice being taken."
    Srsly?

    "If the King of Saudi Arabia places an order for $50 million of resort membership, records are filed, money is transferred,"

    Publicly-traded corporations make financial disclosures to the SEC every quarter. Privately held companies don't have to show their books to anyone.
    It's literally the case that this legal proceeding is about whether or not Mr. Trump's business organization will have to show his books to regulators.

    " the exact same issue would come up with literally every other federal employee that might be "bribed" in such a way."
    Yes. And...?

  • James Pollock||

    "I reviewed the decision. Beyond the obvious issue, where the lawsuit is a means to "get ahold of Trump's tax returns, " presumably for public release and/or leaking (which, in many ways, is a misuse of the law)"

    You lead off with this, and then have the nerve to call me biased.
    The prosecutors in this case want to get ahold of Mr. Trump's business records (not "tax returns"... tax returns are just a tiny subset of the documents that would be subject to discovery.) Those records are almost certain to be placed under seal by the court, meaning that leaking them would expose the leaker to rather substantial penalities, including jail time for criminal contempt and, almost certainly, disbarment)
    But, if there's any more criminal conduct revealed by the examination of the business records, disclosing the exact nature of the criminal conduct to Congress for impeachment would be legal and proper.

    "What EXACTLY qualifies as de minimus?"
    The answer to every legal question is "it depends". In this case, it depends on what the emolument is, and who it went to. The President is a special case, so I'll lay that out here: It's de minimus if Congress decides it is when they vote on articles of impeachment. If enough members think the exact emolument identified is de minimus, then no emolument article of impeachment will pass. If it does pass, then the Senators will vote on whether or not to convict.

  • Amateur Lawyer||

    "You call me biased".

    You are. You implied that a multibillionaire would be corrupted by receiving a cup of coffee. Which is absurd. It's a show of clear and complete bias. It invalidates most, if not all, of your opinions.

    As for my lead-in, I was responding to the title of the post.

    Good day.

  • James Pollock||

    "You implied that a multibillionaire would be corrupted by receiving a cup of coffee."

    Dude, that was YOU.

    I used facts (The guy lies reflexively, and he is super cheap at others' expense) to posit that it's not at all absurd to wonder whether $40,000 would be enough to get him to sell somebody out.

    Hint: My position is that he is already corrupt. You're the one trying to affix a price-tag.

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