Emoluments and Tax Returns

12 June 2017

Cogito Ergo Non Serviam

Maryland, DC Sue Trump over Private Businesses

The Attorneys General of the State of Maryland and of the District of Columbia have filed suit in federal court alleging that President Donald Trump has violated the constitution's emoluments clause through his private business holdings. This is similar to a lawsuit filed earlier this year by a watchdog group, but because these are governmental entities, they have better standing to sue. Indeed, some constitutional experts make them "coequal sovereigns." The real object here is to force Mr. Trump to reveal his tax returns.

The New York Times explains, "No state has accused a president of violating the emoluments clauses of the Constitution. One of those clauses bans federal officials from accepting gifts from foreign governments. A second prohibits the president from accepting economic benefits from the federal or state governments, other than his salary.

"Because Mr. Trump continues to own and profit from his business empire, the lawsuit claims, it is unclear whether he is making decisions in the country's best interest or out of 'self-interested motivations grounded in the international and domestic business dealings in which President Trump's personal fortune is at stake'."

The harm that this does financially and legally is simple enough. Foreign diplomats and others who may wish to curry favor with the president patronize his hotels and restaurants rather than other facilities owned by the State and the District. "[T]he Trump International Hotel in Washington competes with facilities owned or operated by the city's government, including the Walter E. Washington Convention Center, its armory and its Carnegie Library. It also competes with a government-owned conference center in Bethesda, Md., and a resort in Prince George's County, Md., that generates tax revenue for the state, the suit claims," said the NYT.

The administration and the Trump Organization appear to take the view that owing a business that foreigners may patronize doesn't make it a payment to the president in the sense that the emoluments clause means. Even if it does, their view is that Congress rather than the courts should come up with a remedy. As co-equal branches of government, one can see that Congress may have an interest, but historically, disputes between the federal government and state and local authorities have been settled in court.

However, the Constitution makes it clear that Congress has the power to address emoluments. The relevant language reads, "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." The founding fathers spoke 18th century English, and so one turns to the definitive dictionary of the time, Samuel Johnson's. He defined emolument as "profit, advantage." Game, set and match it would seem to DC and Maryland.

However, before it goes that far, there is legal discovery, and that would force the Trump tax returns into the open, something that would up-end the president's position. His best hope would be to have the court declare that the plaintiffs have no standing to bring such a case. That is unlikely to happen.

What Mr. Trump doesn't seem to appreciate is the political situation this creates. He is effectively standing in the courtroom arguing that he should be allowed to accept money from foreign powers without Congressional approval. Were he to go to Congress to get blanket approval for the Trump Organization's operations, it doesn't look much better. He's then asking Congress to approve the same. For those in Middle America who don't get money from foreigners of any stripe, this is somewhat unpatriotic on the face of it.

© Copyright 2017 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.

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