Ethics Watchdog Group Sues President Trump

By: Peter Askin, 2L
Marketing Editor

Citizens for Responsibility and Ethics in Washington (CREW)—a non-profit government watchdog group located in the nation’s capital—has filed a federal lawsuit in the Southern District of New York against President Donald Trump. The group alleges that Trump has violated the Foreign Emoluments Clause of the U.S. Constitution. The clause states that “no Person holding any Office of . . . [the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any . . . foreign State.” The group argues that Trump collects a pecuniary benefit from foreign governments and officials because of his various business ties.

Trump looking sad

Citizens for Responsibility and Ethics in Washington (CREW) has filed a federal lawsuit Donald Trump

For example, CREW notes that Trump receives rent payments from the Industrial and Commercial Bank of China and the Abu Dhabi Tourism and Culture Authority, who are tenants at Trump Tower in New York City. Trump also receives royalties for showings of “The Apprentice” on state-owned television networks in the United Kingdom and Vietnam. The complaint lists other business ties with foreign governments in the Philippines, India, Turkey, Russia, Saudi Arabia, Taiwan, and Scotland.

CREW is represented by what they call a “legal dream team” of constitutional scholars, ethics experts, and litigators. This includes Erwin Chemerinsky, Dean of the University of California Irvine School of Law and constitutional law textbook author; Harvard Law professor Laurence Tribe; Richard Painter, the former ethics advisor to George W. Bush; and Deepak Gupta, a Supreme Court litigator at Gupta Wessler.

Unfazed by these legal heavyweights, Trump’s attorneys have responded that the Emoluments Clause was intended for special gifts from foreign officials and does not apply to fair-market payments. “No one would have thought when the Constitution was written that paying your hotel bill was an emolument,”

Trump lawyer Sheri Dillon told a press conference. The President’s son, Eric Trump, described the lawsuit as “purely harassment for political gain” and “very sad.”

In addition to arguing against Trump’s narrow interpretation of the clause, CREW will have to convince the court that it has suffered harm to warrant standing in the case. The watchdog group argues that it suffers a cognizable injury because it must spend valuable resources to moniter and invrestigate Trump’s ethical violations. The group cites the case Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), to support its standing argument. In that case, the Court recognized an organization’s drain on resources as a “concrete and demonstrable injury.” Washington & Lee Law Professor Joan Shaughnessy notes that there are some difficulties with relying on Havens. “The non-profit in Havens expended resources for field testers, while CREW relies on its expenses for merely monitoring and researching Trump’s conflicts of interest,” she observed. “The Court has also been more restrictive with justiciability since the Havens case in 1982.”

While CREW’s standing argument seems difficult, its success on the merits is also uncertain because the Emoluments Clause has had little to no litigation. Michael Farris—founder of Patrick Henry College in Northern Virginia—is one of few attorneys who brought an emolument argument before federal courts in the 1990s. Farris represented Michael New, an Army Medic ordered to serve with a U.N. peacekeeping unit. New refused on both moral and constitutional grounds, and argued in court that such service to a foreign service constituted an emolument from a foreign government absemt Congressional consent. Without ruling on this argument, the D.C. Court of Appeals dismissed the case for lack of exhaustion of military court remedies. Distinguishing the New case, Farris commented on his Facebook page that CREW’s lawsuit is “laughable” given Trump’s ownership of businesses are in a blind trust.

Some W&L law students expressed similar skepticism of the lawsuit and Dean Chemerinsky’s involvement. “Chemerinsky is a political activist,” Andrew Logan, 2L, commented. “I don’t recall any similar complaints from him about then Secretary of State Clinton’s solicitation of donations from foreign governments to her family’s private foundation,” he added.

While unsure about the merits of the lawsuit, other students questioned Trump’s business ties. “I have my doubts that it is a truly blind trust after seeing reports that that the trust is revocable and subject to some of his control,” Alan Carrillo, 2L, observed. “I fear that Trump’s awareness of his ability to benefit financially through his presidency could affect his governance.”

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