In January, two days after Donald Trump was inaugurated as President, an anti-government corruption group called Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against him to great fanfare. The suit alleged that Trump was violating the Constitution’s foreign-emoluments clause, an obscure passage that prohibits government officials from accepting gifts or other benefits from foreign governments without approval from Congress. CREW’s case would become just one of several emoluments lawsuits filed against Trump, but it was the first, and it came together during the early, emotional post-election period, when Trump’s many detractors were looking for something—anything—to suggest that he could be removed swiftly from office, or at least be prevented from using the Presidency to boost his business.
Nine months later, the emoluments issue has faded from view. Those who still hold out hope of removing Trump from office have focussed their attention on the Justice Department’s Russia investigation, the mechanics of the Twenty-fifth Amendment, or the chances of Democrats taking control of Congress in 2018, with enough votes to begin an impeachment proceeding. Yet the emoluments lawsuits continue to work their way through the courts. On Wednesday, in a courtroom in lower Manhattan, lawyers for CREW laid out their arguments for why the case should be allowed to proceed. On the opposing side, lawyers for the Justice Department asked District Judge George Daniels to dismiss the lawsuit. On one level, the point-counterpoint was an interesting intellectual exercise: such a case has never been pursued in federal court before, and there are compelling arguments to be made on either side. On another level, however, is a larger question about how much actual risk the lawsuit poses to the President, and whether the once-celebrated effort to try to topple Trump on the basis of constitutional violations is effectively over.
The future of CREW’s case could hinge on whether judges accept the group’s premise that the emoluments issue is creating a class of victims. The pages and pages of evidence submitted in the suit include details of Trump’s ownership in L.L.C.s; partnerships operating in at least twenty foreign countries; and the workings of the Trump International Hotel in Washington, D.C., where news organizations have documented spikes in bookings by foreign diplomats “eager to curry favor” with Trump. The hotel recently hired a “director of diplomatic sales” to court this foreign-government consumer base, and has aggressively raised its prices since the election. CREW contends that the elevated profit the hotel has reported is coming largely from foreign business. On Wednesday, in court, Deepak Gupta, an attorney arguing on behalf of CREW who was previously litigation counsel for the Consumer Financial Protection Bureau, called the hotel “an emoluments magnet.”
When it was their turn to speak at the hearing, the Justice Department attorneys arguing Trump’s side of the case got off to a rough start. Since the beginning, the D.O.J. has taken the position that CREW lacks the standing to even bring the case, and that therefore it should be thrown out of court; in response, CREW has recruited several business owners who allege that they have been harmed by Trump’s unfair activities. Brett Shumate, a young deputy assistant Attorney General with a dimple in his chin, spoke first. The claims being made by the plaintiffs were “too abstract,” he said, and could be characterized as a “generalized grievance” that wasn’t specific enough to justify the case moving ahead. A President couldn’t violate the emoluments clauses simply by owning a business that receives some foreign revenue, he went on, citing book royalties collected by President Obama as one example. Further, he said, no one had been harmed, economically speaking, as a specific result of Trump’s business activities. As he spoke, the seven lawyers at the CREW table (including Norman Eisen, of CREW, and the former New York congressional candidate Zephyr Teachout) scribbled notes back and forth to each other on little green slips of paper, nodding and scowling periodically.
Daniels, the judge, interrupted Shumate with a skeptical-sounding question about what the definition of an emolument even was. The D.O.J. disagreed that an emolument was “anything of value, as the plaintiff’s allege,” Shumate said. Rather, he argued, an emolument was “a benefit that was conferred in exchange” for something, like a quid quo pro—I’ll rent your hotel room if you sign this treaty. If the treaty was never signed in exchange for the hotel business, then the transaction was simply a gift, the D.O.J. seemed to be saying. Shumate and the judge then entered into an argument about what that even meant, with the judge throwing out increasingly absurd-sounding examples to see if Shumate would acknowledge that they were emoluments rather than simple presents. If, Daniels asked, a foreign agent said, “We want you to sign this treaty, and we’ll buy a million dollars of your hot dogs so you can put a million dollars in the bank,” but then the President failed to sign the treaty after taking the money, “How is that not an emolument?” By the end of it, even Shumate seemed confused.
There was less levity once Gupta started his presentation on behalf of the CREW case. Wearing a navy suit and tie and chunky glasses, Gupta said that Trump’s defenders were arguing that “the President is above the law,” which was troubling on its face. He described several of the restaurateurs who were part of their lawsuit, and how their businesses, which drew large numbers of foreign dignitaries, had suffered as people had diverted bookings to Trump properties in order to flatter and enrich him, all of which, he suggested, posed dangerous questions for the functioning of democracy. Daniels remained focussed, however, on the more technical question of whether the case should even exist in the first place. “This is not intended to protect individuals from competition,” he said, referring to the emoluments clauses. “How is this an injury caused by his violation of the emoluments clause?” What followed was a drawn-out exchange over the jurisdictional issues raised by the suit: Why, Daniels kept asking, is this a matter for the courts, rather than for Congress? If Congress is concerned about the President’s business activities, shouldn’t it do something? As the debate went on, the band of CREW lawyers started to look increasingly anxious.
“Is this an appropriate case to enjoin a sitting President of the United States?” Shumate said as part of his closing statement. “We would argue this should be addressed in the political arena.” That, of course, is exactly what President Trump would like—to leave matters of his business conflicts and his ability to make money while in office in the hands of the Republican-controlled Congress. To judge from Wednesday’s hearing, Trump will be allowed to continue tweeting about his Bedminster, New Jersey, golf course, and praising the chocolate cake at Mar-a-Lago, while the remittances accumulate in his bank account. Lawsuits aside, other political figures might have been seriously damaged by such a situation. (To say nothing of those who would have taken steps to avoid the conflict of interest.) But for Trump the emoluments issue, so far, remains nothing but a small nuisance.