In the grand scheme of President Donald Trump’s legal problems, the ruling this week by U.S. District Judge Peter J. Messitte of Maryland that a lawsuit based on the Constitution’s emoluments clause may continue hardly registers. The president’s ex-lawyer and fixer, Michael Cohen, has gone rogue, releasing a secret tape recording of Mr. Trump discussing a payoff to a former Playboy model with whom he allegedly had an affair. His former campaign chairman will soon go on trial on assorted corruption charges. Adult film actress Stormy Daniels maintains a legal barrage against the president and his associates. And, of course, Mr. Trump’s lawyers remain locked in a dispute over whether and when he will answer questions in special counsel Robert Mueller’s probe into whether the Trump campaign colluded with the Russian government to influence the 2016 election.
Many of those other cases have the potential to lead in directions that could put his presidency at stake. Most likely, the worst that could happen as a result of the emoluments suit is that the Trump Organization would have to sell a hotel.
But there’s something fundamentally important at the heart of the case brought by Maryland Attorney General Brian E. Frosh and D.C. Attorney General Karl A. Racine: the idea that President Trump should be held to the same basic standards we’ve observed for his 44 predecessors. That concept is already out the window in terms of decorum, honesty and consistency. If this suit succeeds, perhaps we could at least hold to it where the Constitution is concerned.
At issue is whether Mr. Trump’s continued ownership of and profit from the Trump International Hotel near the White House in Washington presents a violation of a clause in the Constitution stating, “No Title of Nobility shall be granted by the United States: And 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.” Another clause holds that the president may not receive “any other emolument” besides his salary “from the United States, or any of them.” The contention by Messrs. Frosh and Racine is that foreign and state governments and interests are choosing to stay, dine and hold events at the Trump International with the express intent of currying favor with the president. They also argue that the federal government’s decision to allow the president’s continued ownership of the hotel despite a clause in the lease prohibiting such an arrangement for a federal office-holder constitutes a domestic emolument.
The plaintiffs had already established standing to sue under the theory that such preferential treatment is harmful to their jurisdictions’ convention centers and other hotels and restaurants, and Judge Messitte’s ruling this week presents a major step forward on the question of what, exactly, an “emolument” is.
The president’s lawyers had sought a narrow interpretation that considered it to mean an explicit payment for his services of office. But the plaintiffs argued successfully that it could apply to any sort of profit, gain or advantage — even the normal course of business in which a foreign actor pays a fair price for a service.
Judge Messitte agreed with the plaintiffs’ interpretation, based on historical definitions of the word “emolument” and the context in which it is used in the Constitution. But if the clause’s broad purpose is to ensure that a president is not influenced in his duties by financial interest, it’s easy to see how Mr. Trump runs afoul of it, even if he donates any foreign profits from the hotel to the treasury, as he has promised but not well documented.
We have little doubt that Mr. Trump is aware that his hotel has suddenly become a hive of activity for conservative groups, foreign governments and all those who wish to curry favor with him. He and his family have visited frequently (The Washington Post documented at least 10 trips by the president himself, dating from his very first dinner out as president in D.C.), and given his business strategy of projecting his properties as a nexus of power and influence, he would doubtless be pleased at the decisions by government officials from Kuwait, Bahrain, Saudi Arabia and others to stay or hold events at the hotel even if he derived no direct profit from them at all.
Now that the suit moves to the phase of gathering and presenting evidence, it provides the hope that the public will, finally, get to see President Trump’s tax returns and possibly other documentation of his business interests. That, in and of itself, would make the exercise worthwhile. But this suit is about much more than that, or even whether President Trump should divest from one particular hotel. It’s about whether he is subject to the rule of law, and given his efforts to squirm out of his myriad other legal entanglements, that’s an important principle indeed.
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