A Lawsuit Attacks the Marketing of the Presidency

This article originally appeared on this site.

On the same day that President Trump gathered his Cabinet secretaries around him for a televised display of acclamation and declared, contrary to the evidence of his legislative record, “Never has there been a President, with few exceptions, who’s passed more legislation, who’s done more things than what we’ve done,” two state attorneys general filed a lawsuit in federal court suggesting that Trump’s most significant achievement as President has been “unprecedented constitutional violations.”

The attorneys general of Maryland and the District of Columbia argued that Trump’s decision to retain ownership of his globe-spanning businesses makes it impossible to distinguish whether the President is making decisions based on his own financial interests or the interests of the American people, a state of affairs that “inflicts lasting harm on our democracy.” President Trump has defended his continuing business interests by saying that, as President, he is exempt from federal ethics laws that apply to other government employees, and that, in any case, he would place his businesses in a trust while his sons run the family company.

It is technically true that a President is not bound by federal ethics rules, but Trump’s actions have severely tested two previously little-considered provisions of the Constitution—the emoluments clauses—that, in the interest of preventing government corruption, bar a President from accepting money or gifts from foreign powers or individual states (which could lead him to favor the interests of one state over another). The lawsuit accuses President Trump of violating both.

While emoluments have come up on the Presidential level before—as when President Obama asked if he could accept the Nobel Peace Prize, which Justice Department lawyers concluded he could because the Norwegian government did not have a “meaningful” role in funding it—the clause has never been tested as it has been during the Trump era. The Constitution does offer a potential path to propriety if a foreign or domestic gift presents itself: if a President wants to accept an emolument, he or she is supposed to seek permission from Congress. “What is so unusual here is a President who has basically ignored the issue,” Lawrence Noble, the general counsel of the Campaign Legal Center and a former general counsel of the Federal Election Commission, said. “The lawsuits are arising, I believe, because Congress is not forcing the issue.” He added, “Maryland and D.C. have a very strong case.”

The suit echoes one that was filed, in January, by a nonprofit legal-advocacy group called CREW, or Citizens for Responsibility and Ethics in Washington, which was joined by an organization representing restaurant and hotel owners who say that they have been harmed by the increased likelihood that delegations will choose to stay at Trump’s hotels because he is the President. (The attorneys general charge that his behavior has caused economic harm to businesses in the District of Columbia and Maryland in particular, which may be competing, directly or otherwise, with Trump’s own companies.) The Justice Department, representing Trump, on Friday filed a motion to dismiss the CREW suit, arguing that the President’s private business interests don’t count as emoluments if they consist of “fair market” transactions such as hotel-room charges and golf-club fees—an argument that seems controversial among legal experts.

The attorneys general didn’t have to do much investigation to make their own case. The evidence of Trump’s confusion of Presidential activities and private-business promotion is on display each day that he’s in office. He has visited his own Trump-branded properties thirty-three times since he was inaugurated, according to the Washington Post, implicitly promoting and encouraging the use of those properties; just this past weekend, he posed for photos at a wedding reception taking place at his New Jersey golf resort. The lawsuit draws on public records and press accounts for its many examples. It describes a “Post-inauguration premium” for the defendant’s goods and services, and lists revenue flowing into Trump Tower in New York, speedy approval of Trump trademarks in China, royalty payments from “The Apprentice,” and real-estate projects proceeding in the United Arab Emirates and Indonesia. It also charges that the Trump International Hotel in Washington has “specifically marketed itself to the diplomatic community” since the Presidential election, and points to the fact that Trump has appeared there multiple times. It mentions (citing NPR and Reuters reports) that the Embassy of Kuwait held an estimated forty-to-sixty-thousand-dollar “National Day” celebration there, moved from its original venue, the Four Seasons, after Trump was elected.

“The simple way to look at it is, when you go to work for the government, it is public service. And you are expected to give your full time and attention and loyalty to the government, and you should not be concerned about your personal financial interests,” Noble said. “And what we have, really for the first time, is a President who in some ways doesn’t have a conflict because he sees his business interests as primary. There’s a sense he’s in constant selling and marketing mode.”

Noble continued, “Someone once asked me, ‘You expect him to stay at another hotel?’ Why not? Why not go to another restaurant? It always seems to be about his businesses, and foreign countries are aware of that.” The new lawsuit insures that matters of business ethics, like so many other concerns hanging over the Trump Presidency, will be a source of ongoing distraction. The most significant question comes down, once again, to why Republicans in Congress are O.K. with it.