I think it’s safe to say that most everyone would agree that we have never had a president in our history like President Trump. Beyond his lack of political correctness, the United States has not had a president who has an international business empire like him. Moreover, it has been many decades since someone with no political experience has been put in the Oval Office. Several leading legal scholars have recently filed a lawsuit that claims payments by foreign powers to President Trump’s companies violate the Title of Nobility Clause, commonly known as the Foreign Emoluments Clause of the U.S. Constitution. The suit alleges that Trump’s business interests create countless conflicts of interest, as well as unprecedented influence by foreign governments.
The Foreign Emoluments Clause states that, absent congressional consent, "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." Lawyers for President Trump have said the clause applies to special gifts, not market value payments, such as standard pricing for a hotel room. Some scholars suggest the clause should not be read so broadly. Trump’s son, Eric Trump, claims that the Trump Organization is going beyond legal requirements by donating to the U.S. Treasury any profits arising from payments by foreign governments at Trump hotels. One aim of the lawsuit is to obtain a copy of Trump’s undisclosed tax returns, which could reveal sources of money and loans Trump has from foreign governments.
The lawsuit also raises the possibility that Trump’s dealings also likely cause him to violate the Domestic Emoluments Clause, which states that the president “shall not receive….any other Emolument from the United States, or any of them,” with the last phrase meaning the individual states themselves, while president. The suit asks the federal court to issue a declaratory judgment defining elements of the Foreign Emoluments Clause, specifically, issuing a judgment that Trump’s business interests do or will violate the clause—and an injunction barring Trump from violating the clause.
Some legal experts believe the suit could be tossed on standing grounds. Standing is a requirement that a plaintiff in a lawsuit has sufficient, individualized injury that results from the alleged action or inaction of the defendant. The American Civil Liberties Union hopes to avoid standing problems by filing its own lawsuit on behalf of a hotel that competes with a Trump property. It is in the process of looking for plaintiffs. One has to wonder, however, if there are ulterior motives behind such a move from one of Trump’s competitors.
The outcome of these lawsuits, including the courts’ interpretation of the Foreign Emoluments Clause of the U.S. Constitution, should shed light on whether or not President Trump will be able to conduct his business dealings as it relates to the presidency. Certainly, one thing that is not foreign to President Trump is lawsuits. Over the past several decades, he is reported to have been involved in well over 4,000 of them. It looks like that tally will keep increasing during his presidency.