How Two Arcane Clauses In The Constitution Could Expose Trump's Businesses [View all]

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Two years into Donald Trump’s presidency, we still know relatively little about the inner workings of his family business, the Trump Organization. But on Tuesday, a case that could force the company to reveal some information about its finances faces a big test in a federal appeals court in Virginia. Judges will hear oral arguments over whether a lawsuit alleging that President Trump is violating the Constitution by accepting payments from state officials and foreign diplomats at his Washington, D.C., hotel, which the Trump Organization operates, can go forward. The case is one of a trio of lawsuits that were filed relatively early in Trump’s term and claim that the president is violating two little-known clauses of the Constitution that prohibit federal officials from accepting titles, gifts or “emoluments” from foreign countries, the federal government or state governments.

Legal experts initially predicted that the cases wouldn’t make it very far. But last year, a federal judge in Maryland handed down a series of rulings in favor of one set of challengers — Washington, D.C., and Maryland — allowing them to issue subpoenas for financial information related to the hotel from several branches of the Trump Organization. In response, Trump appealed to the 4th U.S. Circuit Court of Appeals in Virginia to get the case thrown out — or, barring that, to at least temporarily stop it from moving forward. And the outcome of this high-stakes case could hinge on how the court chooses to interpret “emolument” — a word that dropped out of our common lingo more than a century ago.

It’s rare for judges to be faced with a legal issue that is actually novel, particularly when it comes to the Constitution. But the emoluments clauses, which were initially designed to guard against influence from foreign and other governments, are truly arcane. “The Supreme Court has never ruled on the constitutional meaning of the word ‘emolument,’” said Georgetown law professor John Mikhail, who co-authored an amicus brief in support of D.C. and Maryland on the history of the word.

In other words, what the founders meant when they barred federal officials and the president from accepting emoluments is a central question in this case, although the appeals court judges will also have to consider other issues, like whether the states have the authority to bring the suit in the first place. Trump’s attorneys have contended that the president is not in violation of the emoluments clauses because they specifically refer to a payment for a service — like a salary or consulting fee — accepted from a foreign or state government in one’s official capacity as president. Trump’s opponents, on the other hand, have argued for a much broader definition that includes any kind of benefit or profit gained from a foreign or state government during one’s presidency, which would encompass payments received from foreign countries or state officials at Trump’s hotel.


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https://fivethirtyeight.com/features/how-two-arcane-clauses-in-the-constitution-could-expose-trumps-businesses/