Professor Josh Blackman has a very informative summary of the oral argument before U.S. District Judge George Daniels in CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), one of the three federal cases in which President Trump is being sued for (allegedly) violating the Foreign Emoluments Clause. If you are following these cases, you should read the whole thing.
Of particular interest is the government’s “evolving” position on whether the FEC applies to the president at all. The executive branch has repeatedly affirmed that the clause applies to the president. See, e.g., Off. of Legal Counsel, Applicability of the Emoluments and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize (Dec. 7, 2009). Moreover, prior to the beginning of the Trump administration, the president-elect’s personal lawyers released a white paper in which they expressly acknowledged: “On assuming office, the President-Elect will be bound by—and will scrupulously abide by—his obligations under the Constitution. That includes the obligations created by the constitutional provision that these commentators highlight, the Foreign Emoluments Clause.”
My understanding had been that the Department of Justice, representing Trump as a defendant in his official capacity in the three federal lawsuits, had likewise acknowledged that the FEC applied to the president. However, at the oral argument, DOJ attorney Brett Shumate asserted that the government was only “assuming” that the FEC applied. Subsequently, Shumate wrote to the judge, confirming that “the government has not conceded that the President is subject to the Foreign Emoluments Clause.”
To paraphrase former VP Biden, this is a BFD. I don’t know whether the government will actually argue in court that the FEC is inapplicable to the president. Presumably it hopes not to have to address the issue because the cases will be dismissed as non-justiciable (as they should be). But even if the government never makes the argument, it has now reserved the right to assert that the FEC does not apply to the president or vice president. This seems a little inconsistent with the promise previously made by Trump’s personal counsel, but Congress has now been given fair warning. The president (or his successors) may take the position in the future that the FEC is inapplicable. That means that the president could accept a present, emolument, office or title from a foreign government without seeking congressional consent or even notifying Congress of this acceptance.
This illustrates the danger that these cases pose to Congress’s institutional interests. Both history and text strongly suggest that the FEC is designed to be enforced by Congress, not by the judiciary. Judge Daniels indicated as much during the oral argument, stating: “Clearly the Constitution was written so that Congress would make the determination. . . . They don’t have to sit on their hands if they think there’s a problem. They can do something about it.”
The court is clearly right about this. But there is no one before the court representing Congress’s interests in this matter. Trump’s personal and political interests, the executive branch’s institutional interests, the views and interests of Trump’s political opponents and even the thoughts of officious intermeddlers like Professor Tillman are represented, but not Congress.
It is time for Congress to stop sitting on its hands. It should authorize House and/or Senate legal counsel to file briefs in the three FEC cases, politely explaining to the courts that this is none of their business. It should demand through its committees that the Department of Justice provide a straight answer as to whether the FEC applies to the president. And, while they are at it, the committees should take a hard look at Trump’s business interests and the arrangements that he has made to “scrupulously abide” by the Foreign Emoluments Clause.
You know, the constitutional provision that may or may not apply to him.