Having failed at begging for faithless electors, finding evidence of Russian election collusion, or proving obstruction of justice, Democrats are pursuing a new desperate ploy to remove President Trump from office: “Flagrantly violating” the Constitution’s Foreign Emoluments Clause.
But don’t expect this to work, either.
Despite overseeing two of the country’s most violent, crime-ridden cities, attorneys general for Maryland and the District of Columbia have decided to waste their time suing the president for doing what’s been done by many presidents before him – including Presidents George Washington and Barack Obama.
On Monday, D.C. Attorney General Karl Racine and Maryland Attorney General Brian Frosh, both Democrats, alleged that Trump’s “extensive business entanglements” violate the Constitution, which prohibits government officials from accepting payments from foreign governments without the consent of Congress. Trump owns properties around the world and his hotels have hosted several foreign government officials.
In Article I, Section 9, the Constitution stipulates: “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.”
Although it may seem self-evident that Trump is in breach of the Constitution, the lawsuit is unlikely to survive a well-drafted motion to dismiss.
The Emoluments Clause has been a dead letter since the 18th century. The clause has never been litigated. No federal court has ever interpreted it directly. Legal scholars have debated whether it even applies to the president. It is incapable of judicial interpretation in the modern era without a detailed statutory and regulatory scheme.
Moreover, it has been a presidential custom to violate the clause. As president, George Washington publicly accepted multiple gifts from foreign governments, without asking for or receiving congressional consent. More recently, Barack Obama accepted, among other foreign government gifts, the Nobel Prize and its $1.4 million honorarium while he was in the White House.
One exception was President Theodore Roosevelt. When he won the Nobel Peace Prize in 1906, he decided it was inappropriate to accept the medal and money until he was no longer president.
This isn’t to suggest that Washington and Obama were scofflaws. If our government were to follow the precise letter of the Emoluments Clause, any official with a 401(k), mutual funds, or stocks with multi-national companies or foreign firms would be in violation of it.
In other words, this is a big fuss over a trifle, and the only reason Democrats are bringing it up, despite not bringing it up for any previous president in history, is because they personally dislike Trump.
Apparently, they’re not sick and tired of losing yet.
Mark Grabowski (@ProfGrabowski) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a lawyer and a journalism professor at Adelphi University in Garden City, N.Y.
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