Two AGs Notch Another Win Against the President in Emoluments Saga

The Attorneys General of Maryland and the District of Columbia again got a green light to proceed with their case alleging that the President has violated the Emoluments Clauses of the U.S. Constitution.[1] The ruling is the first of its kind to define “Emolument” and to hold that the clause barring foreign emoluments applies to the President.[2]

President Trump assumed office while maintaining ties to his businesses, including the Trump International Hotel in DC. Some wondered whether those ties might run afoul of the Constitution—specifically, its Emoluments Clauses, which bar the receipt of “Emoluments” from foreign states and the U.S. and state governments. Specifically, the issue arose whether payments by foreign dignitaries and state government officials for rooms at the Trump Hotel—a portion of which presumably went to the President—were constitutionally prohibited “Emoluments.” Three emoluments lawsuits ensued but so far, the AGs are the only plaintiffs that have been permitted to proceed with their claims.[3]

The AGs cleared their first major hurdle last March, when the court ruled that they had standing to sue the President. The AGs argued that the President’s unlawful receipt of emoluments harmed Maryland and DC’s “sovereign, quasi-sovereign, proprietary, and parens patriae interests.” The President countered that any harm to these interests was either not fit for judicial review or too speculative to support standing.

The court rejected some of the AGs’ more creative standing arguments—for example, Maryland’s argument that the alleged receipt of emoluments violated “the terms upon which it entered the Union.” Among those terms was a supposed federal constitutional promise not to support governmental corruption mirroring Maryland’s similar commitment in its 1776 Declaration of Rights.

But ultimately, the court found standing on several other grounds. Among them were alleged injuries to proprietary interests—specifically, Maryland and DC’s ownership or control of certain convention and conference centers, which they asserted, had lost the opportunity to “compete on an equal footing” with the President’s businesses that were supposedly receiving illegal market benefits in the form of emoluments. The court also held that Maryland and DC had parens patriae standing, that is, they could sue on behalf of their residents—among them, private hotels and others in hospitality industry—who had suffered similar competitive disadvantages.

The court’s most recent order addressed what counts as a constitutionally prohibited “Emolument.” The President argued that that emoluments could be payments only in return for official services—e.g., bribes—not what the court referred to as “independent services,” such as payments for hotel rooms or event spaces the President privately owned. The AGs argued for a much broader definition: emoluments were any “profit,” “gain,” or “advantage.”

Marshalling a host of founding-era and more contemporary interpretive authority, the court largely adopted the AGs’ broad emoluments definition. Justifying the breadth of the definition, the court pointed to, among other things, text in both clauses barring “any” emoluments, including the Foreign Emoluments Clause’s ban on emoluments of “any kind whatever.”

In all, the court held that “the term emolument extends to any profit, gain, or advantage, of more than de minimis value, received by him directly or indirectly, from foreign, the federal or domestic governments.” This includes, the court continued, “profits from private transactions, even those involving services given at fair market value.”

Before President Trump, the Emoluments Clauses were regarded as obscure constitutional provisions, the focus only of limited scholarship. Now, in the hands of two state AGs, the clauses might serve as an effective check on presidential corruption.

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[1] The case is District of Columbia v. Trump, No. 8:17-cv-01596-PJM, ECF No. 124 (D. Md. July 25, 2018).

[2] While the District of Maryland is the first federal court to define the term, certain federal agencies—the Office of Legal Counsel and the Comptroller General of the United States—have written their own interpretations.

[3] The first lawsuit was brought by a nonprofit and was dismissed last December for lack of standing. The other suit was brought by about 200 Democratic members of Congress, and is still pending.

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