The civil action suit filed against the Trump administration by “CREW,” the Citizens for Responsibility and Ethics in Washington, claims that President Trump is presently violating, and will continue to violate, the foreign Emoluments Clause of the Constitution.  As written by the Framers, The Emoluments Clause states, “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” (Article I, Section 9, Clause 8).  The basis of the suit is as follows: Within the duration of his presidency, Trump is receiving economic benefit from the leases held by government-owned entities in New York’s Trump Tower, from the international assets he owns, operates, or licenses to foreign governments, and from the payments of foreign-owned broadcasters. Therefore, he is in direct violation of the Foreign Emoluments Clause.  The suit demands a declaratory statement describing the President’s misconduct and injunctive relief as construed by the Court.  Trump, however, is not in violation of the Domestic Emoluments Clause.

Reflecting upon Ness’s in-class presentation, I find myself in a conundrum. On the one hand, I agree with the reasoning that we cannot fault one for one’s entrepreneurial spirit and status.  After all, Donald Trump has been a successful business man far longer than he has been President. His television show “The Apprentice” took to the television screen in 2004, thirteen years before he was sworn in.  Depriving an individual direct access to his own established earnings is unrighteous. Liquidating his assets affects a more extensive time-frame than the four/potential eight years he is in office. The value of his real estate could essentially plummet.  As relayed in class, the effects of this suit can demotivate busnesspeople who have ties to international business and trade and as a result, eliminate an entire candidate class. On the surface, this seems unjust, posing an ethical dilemma.

On a deeper level, however, Trump’s primary occupation is no longer a business man. He is not exclusively serving the financial needs of himself and his family. He is in control of an entity much larger than the Trump Empire, which extends to over 318 million people.  His responsibilities have expanded. Therefore, he should be held to a higher standard than his “former self.”  Taking the oath of office symbolizes a transition into a new authority. Abdicating his former relations would be a just decision; it would set a standard of confidence and security in our leader’s vision and goals.  President Bill Clinton and President George Bush used blind trusts when in office. Although Trump has a higher net worth, he holds the same position.

The problem I face is whether or not removing him from his assets or forcing him to adopt a blind trust will effectively accomplish the suit’s expectation.  Trump is arguably the wealthiest Commander-in-Chief in American history (Forbes).  The feasibility of simply transferring existing assets of such massive net worth into a blind trust is a complex, meticulous, and lengthy process.  Former Deputy White House Counsel Leslie Kernan explains: “For the trust owner to be truly ‘blind’ to his portfolio, his/her assets typically have to be liquidated first. The cash can then be funneled into the trust, to be managed by an independent trustee approved by the Office of Government Ethics.” The problems with this is four-fold. Firstly, how “blind” would Trump truly be? Trump would not receive any information on what has been bought or sold with his money, though he would still be able to report on how much income his portfolio generated as a whole. He would have the ability to access reports on income generation and portfolio management. As stated in class, he cannot “’un-know’ that he owns Trump Tower.” Secondly, with a Republican Congress, how objective is the Office of Government Ethics? Can we entrust in the government branch to offer disclosure throughout the appointment process?  Thirdly, are the “independent trustees” actually independent? As it stands, the trustees are his immediate family members.  The tension between the choice of independent trustees is a problem in itself because it results in privacy issues and familial tensions. Lastly, will Trump not return to his former duties post-presidency? At the core of the suit, the constitutionality of Trump’s actions is limited to the duration of his presidency.  We are contemplating his prior relations, but shouldn’t we also look to his future ones?  Is an injunction a short-term switch instead of a long-term guarantee?  Once again, it is necessary to consider the power that is Donald Trump.  Enacting such a policy and then reversing it would be costly, time-consuming, and possibly debilitating to the American economy and its relations.

Understanding the Constitution requires an interpretation of the distinct positions of living constitutionalists and originalists.  Objectively, the Founding Fathers could not have foreseen Trump’s rise to power.  They could have neither forecasted the interconnected web fostered by the internet and media platforms nor the advancements in infrastructure that would shrink the world.  Additionally, I do not believe the Jeffersonian and Trump parallel fits.  The former was a plantation owner and the latter a hotel manager.  The assets themselves are very distinct, involving the participation of different parties and a spatial provision of a different size.

Therefore, the Emoluments Clause, as presented by the evolvement of society, may not apply to Trump as presented by CREW.  As the organization presents in its case, the Framers inserted the clause into the Constitution with the intention of preventing “any type of foreign influence or corruption from infiltrating the United States government” (Civil Action Suit).  I am not confident that its application and interpretation in Trump’s case is a “fair exchange value.” As aligned with the defense’s claim, Trump’s business model is not founded on the reception of gifts. Rather, it accepts payments for services rendered as through a medium of exchange.

I do not believe that CREW has the authority to file suit. CREW brought the action suit to “stop and prevent the violations of the Foreign Emoluments Clause that Defendant Donald J. Trump has committed and will commit, which have already injured and without a remediable order from this Court, will continue to injure- CREW in the form of a significant diversion and depletion of its time, resources, and efforts.”  Firstly, to predict the actions that Trump will perform is a predictive claim that is unforeseeable. Secondly, the claim for standing to sue is too far removed. To demonstrate that the members were affected by the suit because of the time, energy, and workload created it imposed seems unreasonable. If another party were to file suit, the strength case might be more recognized. However, the terms of the case would not change.

Interestingly, the day after our class, Barack Obama’s ethics lawyer reportedly alleged that Trump has violated the Domestic Emoluments Clause as well.  I am eager to follow up with whether or not there will be a suit directly at the Domestic.