A Democratic senator leading a lawsuit against President Donald Trump denies that his family's investment in the Empire State Building puts him in a similar legal position.
Sen. Richard Blumenthal of Connecticut — lead plaintiff in the Federal Emoluments Clause lawsuit Blumenthal v. Trump, filed in June — addressed the issue after it surfaced on legal blogs.
The senator said through a spokesperson that investments listed on his financial disclosure forms are not owned "personally" by him, but rather by a family member, distinguishing himself from Trump.
Blumenthal is leading 29 other senators and more than 100 House members in suing Trump, claiming he is violating the Constitution's Emoluments Clause through owning Trump Tower in New York City, which has two foreign government-owned entities as tenants.
The obscure 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." Its precise meaning is debated.
Attorney Michael Stern wrote last week on the Point of Order legal blog that Blumenthal's financial disclosure forms suggest he has an interest in the Empire State Building, which is managed by his wife's family and has at least one foreign government-owned entity as a tenant.
"By Blumenthal's own theory," Stern wrote, "he is receiving a prohibited emolument."
Stern, senior counsel to the U.S. House of Representatives from 1996 to 2004, argues against Blumenthal's legal theory, finding it an overbroad interpretation of the clause. Case Western University law professor Jonathan Adler circulated Stern's argument with a post on the popular Volokh Conspiracy legal blog, which is hosted on the Washington Post website.
A spokeswoman for Blumenthal, Maria McElwain, said in a statement emailed to the Washington Examiner that the senator's situation is different from Trump's.
"As shown by an accurate reading of his disclosure form, Sen. Blumenthal does not personally own any of the assets described in Mr. Stern's blog post. He cannot divest a financial interest that he does not own," she said.
The disclosure form directs filers to list assets and income sources for "you, your spouse, or your dependent child." Blumenthal's children are adults.
Investments in Empire State Realty are listed under a subsection for "Cynthia Blumenthal Personal Ownership," referring to the senator's wife, in his 2016 financial disclosure, but some references come before that subsection under various headings.
Empire State Realty is listed repeatedly, with several entries describing a value of more than $1 million, though the precise cumulative amount is unclear.
Empire State Realty controls 18 commercial buildings in New York and Connecticut, according to Blumenthal's filing, and three real estate management companies. The company's website says it "owns, manages, operates, acquires and repositions office and retail properties in Manhattan and the greater New York metropolitan area, including the Empire State Building."
The foreign government-owned entity in the Empire State Building is China's People's Daily newspaper. The entities in Trump Tower are the Industrial and Commercial Bank of China and the Abu Dhabi Tourism & Culture Authority.
Although not raised by Blumenthal's office, professor Robert Delahunty of Minnesota's University of St. Thomas School of Law added one potential argument distinguishing the senator's case, saying: "I doubt that the Federal Emoluments Clause applies to members of Congress, who for several constitutional purposes are not considered ‘officers.'"
Stern told the Examiner an originalist view of the Constitution would support the theory that lawmakers aren't covered, but that "for whatever reason" the House and Senate long have interpreted the clause as applying to Congress.
"The Constitution prohibits any Member or employee of the House (as well as any other federal official) from receiving an emolument," the House Ethics Manual's 2008 edition says. The 2003 version of the Senate Ethics Manual has similar language.
Stern pointed out some scholars argue the clause doesn't apply to the president.
Responding the Blumenthal's statement, Stern said that if spousal ownership avoids alleged constitutional violations, "it would mean that President Trump could avoid any Foreign Emoluments Clause problem simply by transferring his financial interests into the names of his wife or children."
The Constitutional Accountability Center, a group representing lawmakers suing Trump, referred questions to Blumenthal's office.