Emoluments suit helps Congress discharge its duty

President Donald Trump's legal problems continue as the slow drip of revelations, investigations and convictions of his associates continue. The conflict between the president and Congress has added to Trump's legal headaches.

Senator Richard Blumenthal and 200 other members of Congress have sued Trump in federal district court in Washington, D.C. (No.1:17-cv-01154) to compel the president to comply with the Constitution. In June, the court heard oral arguments in the matter. As the case moves forward, Trump's foreign financial dealings and their connection to national security will be fully revealed.

The president has financial interests in a complex web of interconnected business holdings around the world that engage in dealings with foreign governments. The problem is that he has not divested or otherwise given up his ownership interests in these holdings since becoming president, and in fact, his foreign business interests have increased. Congress and the general public have the right to expect that the president's actions involving foreign governments are solely in the best interest of the country.

At least 20 of the president's businesses operate in foreign countries. Since becoming president, for example, the Chinese government has approved at least 40 new Trump trademarks. But that is a fraction of the Trump trademark activity. As of 2017, the plaintiffs allege that Trump companies had 157 trademark applications pending in 36 foreign nations. In addition to Trump businesses operating abroad, foreign states pay for rooms and events at domestic Trump hotels, golf resorts, and for space in the Trump Tower on Fifth Avenue in New York City.

Trump has a network of corporations, limited liability corporations, partnerships, and licensing agreements, but much of the detail about the operation of this network is unknown. The precise nature of his holdings and the benefits the president receives from them is unclear. These unknowns lie at the center of the lawsuit by Blumenthal and his colleagues. Their lawsuit seeks to hold Trump accountable for violating the foreign emoluments clause of the Constitution.

Article I of the Constitution provides that "no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument ... of any kind whatever, from any King, Prince, or Foreign State." This clause applies to President Trump. He occupies an office of "Trust," and Congress has not consented to his receipt of emoluments, which historically has been understood to mean "profit," "gain" or "advantage."

The Framers of the Constitution created a constitutional process designed to prevent the potential corrupting influence by foreign governments. They believed that nothing was more dangerous to the future of the country than undue foreign influence, because it invariably rests on corruption within by those holding "any office of profit or trust." Although the Framers did not envision cyberattacks on our voting system, they were aware that private financial interactions with foreign governments could threaten our national security and foreign policy.

Of special concern to the Framers was the risk that foreign states would give benefits and rewards to the president. James Madison argued that the president, who only occupies the office for a limited term, posed a special risk of corrupting financial entanglement. Past presidents regularly have respected the constitutional obligation to comply with the foreign emoluments clause by acting in a transparent fashion.

The Framers solution to avoiding corrupting foreign influence was to establish a constitutional "guard rail" in the form of a legal process whereby the president, as well as others subject to its mandate, must notify and secure the consent of Congress before accepting an emolument "of any kind." The Constitution is violated only when the president fails to notify and receive the consent of Congress, which Trump has failed to do. This constitutional procedure, which is aimed at creating transparency and accountability, creates a check-and-balance between Congress and the presidency. It is designed to ensure that matters of national security and foreign policies are governed in the nation's interest, not personal financial gain.

Allowing the president and his private business deals with foreign governments to go undisclosed, unapproved and unmonitored creates the appearance of impropriety. It also poses the substantial danger that national security or foreign policy decisions may be motivated by something other than the public interest. Senator Blumenthal's lawsuit is an appropriate step toward assuring Congress is allowed to properly discharge its responsibility under the foreign emoluments clause.