The Emoluments Controversy

So, you’ve probably heard that President Trump, according to liberal Citizens for Responsibility and Ethics in Washington That Applies to Republicans Only (CREW-TARO) filed a lawsuit against the president claiming that he violated Article I, Section 9, Clause 8 of the Constitution.

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.

ARTICLE I, SECTION 9, CLAUSE 8

Oddly, CREW-TARO also asserts that the President violated Article II, Section 1, Clause 8, which provides in full:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

So, what, precisely, is an emolument? The current version of the dictionary, reflecting the current use and understanding of the word says:

Emolument:  the returns arising from office or employment usually in the form of compensation or perquisites. (Webster’s Unabridged Dictionary)

Websters goes on to describe the origin as from the Latin emolumentum, which was defined as profit or gain, and was derived from the latin word emolere, to “grind up,” as in grinding up grain.

So, what, precisely is the lawsuit all about?

Lilliputians!

Remember Gulliver’s Travels? In the story, Gulliver arrives on the land of Lilliput, and lays down to nap. When he awakes he’s been tied down by the far weaker Lilliputians. They effectively negate his size advantage by using multiple ropes to confine him. Well, that is essentially the purpose of the lawsuit here, because while the President is fighting these meaningless battles, he’s not making America Great Again (except, of course, he actually is with employment up, manufacturing up, and real GDP growth).

Here’s what CREW-TARO did. First, the alleged injury in their own right. They did it in a manner so vague as to be truly laughable. Witness, from the  Second Amended Complaint:

  1. Defendant’s violations of the Emoluments Clauses also have required CREW to expend a significant amount of time and resources to research and monitor Defendant’s business interests. Since the November 2016 election, CREW researchers have dedicated significant time and effort to developing a comprehensive understanding of Defendant’s business empire and conflicts of interest, particularly regarding his business ties to foreign companies and governments that run a strong risk of resulting in a violation of the Emoluments Clauses. For example, CREW researchers have compiled and analyzed data regarding the more than 500 business entities Defendant listed on his 2016 personal financial-disclosure form, developing that information for both internal and external uses. As part of that project, CREW researchers devoted at least seventy hours to creating a series of infographics to explain the Defendant’s businesses and income, emphasizing the Defendant’s foreign businesses.60 This project began on November 28, 2016 and is not yet fully completed. Every member of CREW’s research team has worked on this project on a near-daily basis.

Yeah, you read that right. Donald Trump sent someone over to CREW-TARO’s offices to force them, at gunpoint, to expend resources to see if the President is cheating, and by God, they had to create infographics to do it! Oh the horrors!

  1. In addition to the diversion and depletion of CREW’s resources, CREW is further injured because Defendant’s violations of the Emoluments Clauses increase the costs to CREW to carry out its mission in the normal course of business. By accepting presents and emoluments through nonpublic channels, Defendant’s violations will deprive CREW of information about financial support Defendant will be receiving from foreign, state, and the federal governments, forcing CREW to expend resources to uncover his violations of the Emoluments Clauses.

Yes, Donald Trump is increasing their costs of doing business by, let me see if I get this right, forcing them to do the business they say they’re in? So, I can sue Obama for forcing me to buy Aspirin then? Cause that asshole gave me a headache!

Standing

Now, when this lawsuit gets dismissed in federal district court after the October 18, 2017 hearing that is currently set (and that will be breathlessly reported on by CNN, Washington Post, and the NY Times) the liberal spin will be that it was dismissed “on a technicality.” But that will just be another media lie.

In fact, it will be dismissed because of a lack of Article III standing under the Constitution. Now, lots of people don’t understand the concept of standing, and the media always does a horrible job of explaining it. Basically, it boils down to this. You have to show that you have a significant injury, fairly traceable to the challenged conduct, for which the law can grant you a remedy. The remedy sought here is an injunction that forces the president to divest ownership of his business interests, which would itself be unconstitutional. CREW is effectively saying “okay, you want to be President, you can’t earn any money but your Presidential salary, and you have to get rid of everything you own.” Gee, that seems fair!

Here’s the problem with CREW-TARO’s assertions.  First, the plaintiffs are, among other things, restaurants and hotels that claim a loss of profits due to Trump Hotels and restaurants being better built, providing better food, paying better wages, and attracting more customers.  In their complaint (read it, it’s attached) they never provide any specific information about injury, and in fact claim that they “will be injured” by the President’s actions.  So, just like a Democrat, hollering before they’re even hurt.

Now, you may have missed the CREW-TARO lawsuit that they filed against President Obama when he received the Nobel Peace Prize. But of course, that’s because they didn’t sue Obama. No one did. And when the issue was brought up, Obama’s justice department concluded:

As we previously explained in our oral advice and now explain in greater detail, because the Nobel Committee that awards the Peace Prize is not a “King, Prince, or foreign State,” the Emoluments Clause does not apply.

How convenient! It is because the Nobel Committee isn’t a foreign state. But of course, its members are appointed by a foreign state actor. But why quibble about the finer points when no one cares because our first black president got an award he didn’t earn and didn’t deserve.

Now, flash forward to today. What’s the position of the CREW-TARO people with regard to emoluments? Well, first, let’s forget the dictionary definition. The President’s lawyers explain in their memorandum of law that lawyers get to define words all the time, so this is how CREW-TARO defines it:

Plaintiffs allege that the President owns and controls hundreds of businesses throughout the world, including some doing business as The Trump Organization. Id. ¶ 42. They allege that the President violates the Emoluments Clauses whenever such businesses receive “anything of value, monetary or nonmonetary” from an instrumentality of a foreign, federal, state, or local government. Id. ¶¶ 7, 37. In Plaintiffs’ view, a “present” is anything of value “provided without a return of anything of equal value,” while “an ‘Emolument’ … could cover anything else of value, including without limitation payments, transactions granting special treatment, and transactions above marginal cost.” Id. ¶ 37.

Motion to Dismiss at 22. I’ve linked the document here, and you should read it.

So, what does that mean, exactly? It means when Dung Wu, who is paid by the Chinese government to translate American books, walks into the coffee shop at Trump’s DC Hotel, and plunks down $10 for an overpriced cup of coffee, China has effectively provided an “emolument” to the President because Dung wouldn’t have had that $10 if it hadn’t been for China, and clearly Dung was trying to curry presidential favor.  Say What?   It means that when the Government of Saudi Arabia, that gave billions to the Clinton Slush Fund, er, sorry, Global Initiative, pays an amount actually due from a prior contract — rent on a suite of rooms in a Trump Condo in New York — they’re giving the president an “emolument.”  Isn’t anything of value a little over broad?  The president’s lawyers say yes, and their historical analysis in the memo is worthy of a read.

So… does your head hurt yet? Because it should.

Good Lawyering

The President’s lawyers, however, have done a good job of attacking the ridiculous lawsuit on the basis of standing. Essentially the lawyers argue that the defendants have not alleged any injury to them that flows from the President’s conduct, they have no standing, that the provision they attempt to enforce has different interests than those of the plaintiffs, and that because the President derives money from business operations that are outside the scope of his office as president, the profits so derived are not emoluments, noting that historically, each of the first few presidents, and many of the government officials, did not even derive a salary, but were instead allowed to operate their own businesses. The motion to dismiss provides the needed history as well as a cogent explanation of why the Emoluments Clause doesn’t stand for what the CREW-TARO people think it does.

In other words, the Emoluments Clause, which has never been litigated before, and is an issue of first impression, is being litigated in a venue that is rife with Democratic judges, and that has not even a smattering of merit.

And CREW-TARO will lose.

If I were the President, I’d ask for Rule 11 Sanctions.  I would be damned if I would let those small-minded bastards tie me down!

 

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