Image by DonkeyHotey, Flickr, Creative Commons
The recent opinion allowing the plaintiffs’ emoluments claims to go forward comports with recent suggestions about separating this President from the office of the Presidency.
Yesterday the District Court for the District of Maryland issued an opinion finding that the plaintiffs (the District of Columbia and Maryland) had stated a claim against the President for violations of the emoluments clauses. In some ways, the opinion was unsurprising: The more difficult questions in the emoluments cases have been related to justiciability, such as whether the various plaintiffs have standing. (I continue to think that they do.)
But the court’s was also a welcome relief from other news related to the federal courts. And the opinion rejects what was a decidedly unpresidential litigating position that DOJ took—in Jane Chong’s memorable encapsulation, that “super-rich presidents get a pass” and can profit from the office of the Presidency. (You can read her other posts in that series here and here.) Briefly, DOJ attempted to distinguish “employment” or “personal service[s]” from the President’s financial stake in large hotels and restaurants.
As Chong observed:
“This assertion—that payment for goods and business-related services is permissible but payment for employment and ‘personal services’ is not—means that a president can’t profit off his own brain or body when it comes to cash from foreign sources or U.S. government entities, but can, almost without limitation, profit off the brains and bodies of those he can afford to employ in his private capacity. It’s what you might call a constitutional free pass for super-rich presidents.”
The district court rejected DOJ’s argument and adopted a purposive test for what constitutes an emolument. An emolument, the court explained is a thing of value that realistically has “potential to unduly influence a public official.” That makes sense, as the court explained, of the emoluments clause text (a proposition for which the court relied extensively on John Mikhail’s scholarship) and of its purposes to prevent corruption (a proposition for which the court relied extensively on Zephyr Teachout’s scholarship.) (The district court also held, in the alternative, that even under DOJ’s argument that an emolument was something given to the President “because of holding office,” the plaintiffs had stated a claim for relief, an argument Marty Lederman developed in depth here.)
I want to highlight something about the district court’s interpretation of the emoluments clause that has something to do with the Court’s unfortunate opinion in the entry ban litigation. In Trump v. Hawaii, recall, the Supreme Court insisted that there can be, and that there should be, no conceptual space between “the office of the Presidency” and this President (who debases the office and others within its teach on a near daily basis). That is, in Trump v. Hawaii, the Court was of the view that, once the various institutions of the Presidency got involved (even if they got involved because of a dog-whistling order that reeked of religious hostility and once contained a facial discrimination on the basis of religion), the full weight and powers of the Presidency were behind the order. And, as such, the Court said it would sustain the order if it could drum up any kind of legitimate rationale that might explain the order, even though illegitimate rationales actually motivated it, at least in part.
Of course it’s generalizing and abstracting a bit from the Court’s opinion in Trump v. Hawaii to say that the opinion stands for the proposition that the office of the Presidency is more than this President. But as other scholars have observed, that is what the Court (at least the majority opinion) seemed to be getting at, and that is what appears to be doing a lot of work in the Court’s reasoning. The Court maintained that this President became, and should be treated as the office of the Presidency, not that the office of the Presidency should be treated as nothing more than him and his statements. After noting the litany of bigoted and xenophobic statements the President had made, the Court stated that it “must consider not only the statements of a particular President, but also the authority of the Presidency itself.”
If we take the Court at its word that a President gets the full benefit of the office of the Presidency, and if we take seriously the idea that there should not be conceptual space between a President and the office of the Presidency and that this President is the office of the Presidency and the office of the Presidency is not him, that makes the district court’s reasoning in the emoluments case seem even more persuasive. The President’s interpretation of the emoluments clause has been that he can, in his capacity as a businessman, personally profit off of his office, and that he can use the office for personal gain. That argument is pretty difficult to square with the idea that the office of the Presidency is more than an angry ranting bigot seeking to get rich(er) off of the ultimate grift—wielding the office of the Presidency and its substantial powers and influence to induce foreign and state governments to frequent his personal businesses.
Originally published by Take Care under the terms of a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International license.