All four Democratic members of Congress from New Mexico are part of a lawsuit against President Donald Trump that cites the Emoluments Clause, a section of the U.S. Constitution that went relatively unnoticed until Trump took office without divesting himself from his businesses. Nearly 200 Democrats signed onto the legislation that says Trump is violating the constitution by profiting from his businesses’ deals with foreign governments. The clause says, “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.”
U.S. Sen. Richard Blumenthal, a Democrat from Connecticut, announced the suit on a conference call to reporters earlier this week. Blumenthal, the ranking member of the Constitution Subcommittee of the Senate Judiciary Committee, and Rep. John Conyers Jr., a Michigan Democrat and ranking member of the House Judiciary Committee, are lead plaintiffs on the suit. The New Mexico members involved are U.S. Senators Tom Udall and Martin Heinrich and U.S. Representatives Michelle Lujan Grisham and Ben Ray Lujan.
ProPublica recently took a look at the Emoluments Clause, the provision of the Constitution which seems to ban payments from foreign countries to Donald Trump’s businesses once he becomes president unless Congress consents. But at least one scholar, whose work we inadvertently overlooked, insists that the clause does not apply to presidents, vice presidents or members of Congress. Professor Seth Barrett Tillman, a lecturer in law at the National University of Ireland Maynooth, bases his argument, which appeared in more accessible form in a New York Times Room for Debate feature in November and much earlier in scholarly form, including this article in the Northwestern University Law Review, makes two principal arguments. First, he notes that George Washington accepted two gifts from French officials while president without seeking congressional consent. Second, Tillman says that a list of office holders prepared by Secretary of the Treasury Alexander Hamilton for the Senate during the 2nd Congress, and which excluded elected officials such as the president, vice president and members of Congress, establishes that such officials were not intended to come within the Emoluments Clause’s scope.
Far from ending with President-elect Trump’s announcement that he will separate himself from the management of his business empire, the constitutional debate about the meaning of the Emoluments Clause 2014 and whether Trump will be violating it 2014 is likely just beginning. That’s because the Emoluments Clause seems to bar Trump’s ownership of his business. It has little to do with his management of it. Trump’s tweets last Wednesday said he would be “completely out of business operations.” But unless Trump sells or gives his business to his children before taking office the Emoluments Clause would almost certainly be violated.
The question of whether President-elect Donald Trump will run afoul of federal conflict-of-interest rules or the Constitution because of his extensive foreign investments has been the subject of intense scrutiny among legal and ethics scholars. Legally, his foreign licensing deals could violate the Constitution. An example: During his presidential run, Trump’s name was used to market a never-finished luxury hotel in Azerbaijan, built by the billionaire son of the country’s transportation minister. The deal earned Trump more than $2.8 million between January 2014 and May 2016, according to financial-disclosure filings he filed as a candidate. (See his 2015 and 2016 reports here.)
This story originally appeared on the ProPublica website and is republished through a Creative Commons license.