Maryland Attorney General Brian Frosh may have just filed the most exquisitely timed appeal of his legal career. On the same day that President Donald Trump was promoting his own Miami golf resort as the site of the next G-7 summit, Mr. Frosh and District of Columbia Attorney General Karl Racine petitioned the 4th U.S. Circuit Court of Appeals to reinstate litigation aimed at enforcing a constitutional ban on gifts from foreign governments to top government officials. In other words: A blatant pitch for foreign investment in a for-profit business just got the perfect legal response — a reminder that it’s brazenly illegal.
No doubt Trump supporters will call Monday’s court filing a waste of time and question the motives of two elected Democrats who seek to expose the president’s personal finances, which is always a touchy subject with the current occupant of the Oval Office. And the president himself insists he wouldn’t profit off the G-7 (though how we would ever verify that is beyond us). But whether Messrs. Frosh and Racine are motivated by a love of the U.S. Constitution or a desire to bring down a presidency is hardly relevant. The fact is the emoluments clause (a ban on compensation from foreign governments and from the domestic variety, too, at least beyond the president’s salary) exists in the nation’s founding document means it’s up to the courts, ultimately, to enforce it. And who better to bring that lawsuit than the attorneys general who represent the Trump International Hotel’s competitors in the D.C. area (the folks who have suffered measurable damage)?
So far, Mr. Frosh and Mr. Racine are batting .500. Their 2017 lawsuit (one of several related to the emoluments clause) survived a challenge at the District Court level but was tossed by a three-judge panel in Richmond chiefly on the issue of standing. The full circuit may well see things differently, however, if only because the majority of the judges are Democratic appointees who are likely capable of recognizing a legally valid claim against a Republican president when they see one. In any event, the lawsuit deserves its day in court: How much has President Trump profited from government spending richly deserves to be public knowledge. Better yet, Article I, Section 9, Clause 8 deserves to be upheld. There’s a reason the founding fathers didn’t want the head of state to be beholden to other governments. It’s this thing called bribery. Seriously, you don’t have to be a lawyer to understand that.
Granted, these are untested waters. But that’s why the actual merits of the case deserve to be heard. Forget all these time-consuming motions over arcane issues of standing and writs of mandamus. If it makes more sense to let presidents make as much as they want from other governments, whether in the context of room service and reflexology massages for finance ministers at the next G-7 meeting or from Secret Service golf cart rentals (estimated at nearly $600,000 to date, incidentally) or even from promises to develop a Trump Tower in Moscow or Beijing, then let Congress say so plainly. The emoluments clause actually gives the legislative branch the option to relax the rules. It is not up to the executive branch.
But make no mistake, what we have right now is the ugly spectacle of a president making money off the highest office in the land and laughing all the way to the bank about it. It isn’t hard to see the law being broken. The very U.S. General Services Administration lease that allows Mr. Trump to operate a hotel in the Old Post Office in Washington specifically forbids elected officials from receiving benefits from the property. Yet the president continues to do so as he’s failed to fully divest himself from his company. Is the president working on behalf of the United States or on behalf of the Trump Organization? It’s impossible to know for sure. Somebody has to draw a line, and if it’s not the judiciary, who will it be? Senate Majority Leader “Moscow” Mitch McConnell? The Trump Justice Department? Please, Mr. Frosh (and all those pro bono good government advocates working behind the scenes) and 4th Circuit judges, help fix this scandalous thumbing of the nose at the Constitution. The American people deserve to see the law upheld even against the rich and powerful.