Congressional Democrats are taking their Emoluments Clause case to the Supreme Court, claiming that President Donald Trump has been violating the Constitution since the day he took office by earning money from foreign business.
The U.S. Court of Appeals for the D.C. Circuit dismissed the Democrats’ lawsuit in February, arguing that the legislators lacked the standing to sue. With just four months to go before the November election, it might seem Democrats — currently favored in the polls — might be prepared to wait to resolve the issue at the polls. But they continue to argue that President Trump is actually disqualified from office, and is violating the Constitution.
The Emoluments Clause of the U.S. Constitution 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.
Harvard Law School Professor Laurence Tribe — one of the Democrats’ key advisers during the impeachment of President Trump — argued in December 2016, shortly after Trump won the election, that he should be prevented from taking office because of Emoluments Clause.
Tribe wrote:
Trump’s continued interest in the Trump Organization and his steady stream of monetary and other benefits from foreign powers put him on a collision course with the emoluments clause. Disentangling every improper influence resulting from special treatment of Trump’s business holdings by foreign states would be impossible. The American people would be condemned to uncertainty, leaving our political discourse rife with accusations of corruption. These problems are exacerbated by the fact that Trump has regularly declined to make his business dealings or tax returns transparent.
It is unclear that the Framers intended “Emoluments” to include ordinary business transactions that arguably would have taken place anyway. The context — “presents” and “Title[s]” — suggests special, once-off payments.
Democrats pursued Tribe’s proposed legal course in an effort to delegitimize the Trump presidency. However, they have come up empty in the courts — so far.
The Democrats are not guaranteed a hearing at the Supreme Court. They have applied for certiorari; if the Supreme Court denies that application, and refuses to hear the appeal, the decision of the lower court will stand.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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