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Legal Scholars File First Suit Over Emoluments Clause

By Casey C. Sullivan, Esq. on January 24, 2017 | Last updated on March 21, 2019

All the talk about the Emoluments Clause you've been hearing lately may be soon put to the test. A group of high-profile legal scholars filed a lawsuit yesterday, alleging that the Trump administration is in violation of this once-obscure constitutional provision.

The Emoluments Clause, neighbor to the Nobility Clause, prohibits members of the government from receiving emoluments, or payments, from foreign governments. The Trump administration, with the president's vast business holdings, is already in violation of that clause, according to the suit. The government of China, Saudi Arabia, or, say, Russia, for example, could seek to influence the president by renting a room at the new Trump hotel in Washington, D.C. -- rooms that top out at $25,000 a night.

Top Lawyers Take on Trump

The team behind the suit includes Erwin Chemerinsky, the dean University of California, Irvine's law school; Laurence Tribe, a constitutional law scholar at Harvard; and Zephyr Teachout, a Fordham law professor and former congressional candidate in New York.

Tribe, for one, has been itching to sue Trump for a while now. For example, when Gibson Dunn's Ted Boutrous pledged to "represent pro bono anyone Trump sues for exercising their free speech rights," Tribe responded:

Teachout is one of the few people who payed attention to the Emoluments Clause before the most recent election. She's been studying and writing about the clause for the better part of a decade.

The professors are joined by Norman Eisen and Richard Painter, ethics lawyers from the Obama and George W. Bush administrations, respectively, and Deepak Gupta, a celebrated Supreme Court litigator, among others.

Trump and the Emolument Clause

The lawyers represent the Citizens for Responsibility and Ethics in Washington, or CREW. CREW's complaint alleges that Trump's business interests "are creating countless conflicts of interest, as well as unprecedented influence by foreign governments, and have resulted and further result in numerous violations of Article I, Section 9, Clause 8 of the United States Constitution, the 'Foreign Emoluments Clause.'"

That clause, the suit continues, recognizes that "private financial interests can subtly sway even the most virtuous leaders" and "pose a creeping, insidious threat to the Republic." The Emoluments Clause is "no relic of a bygone era," the suit asserts, "but rather an expression of insight into the nature of the human condition and the preconditions of self-governance."

Applied to Trump, "the text and purpose of the Foreign Emoluments Clause speak as one: this cannot be allowed."

Does the Suit Stand a Chance?

During the president's first press conference since winning the presidency, Sheri Dillion, a partner at Morgan Lewis who has been advising the new administration, argued that the Emoluments Clause did not apply to fair-market exchanges. "No one would have thought when the Constitution was written that paying your hotel bill was an emolument," she said. The Trump administration has dismissed the suit as "without merit."

The lawsuit may have a rough road ahead of it. CREW's standing, for example, is questionable. But if the case makes it to the discovery stage, that may be victory enough. If the legal team can't force Trump to disentangle his business conflicts, it wants to use the discovery process to access his tax returns.

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