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Donald Trump

"Emoluments" Suit Against Trump Can Proceed

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

|The Volokh Conspiracy |


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.

Donald Trump emoluments clause