See You in Court, Mr. President

Deepak Gupta leads lawsuit against Trump

Deepak Gupta of the Citizens for Responsibility and Ethics in Washington (CREW) is part of the watchdog team that sued President Donald Trump for violating the Emoluments Clause, a constitutional provision that prohibits federal officials from accepting “any present, emolument, office, or title, of any kind whatever” from a foreign state without congressional approval.

The Trump International Hotel, along with Trump Tower in New York and many other of Donald Trump’s business interests, all figure in a federal lawsuit filed, claiming that President Trump is violating the Emoluments Clause when foreign entities book rooms at the D.C. hotel or lease Trump office space.

The emoluments lawsuit against Donald Trump is an audacious gamble. The clause clearly bars Trump from receiving payments from foreign governments, including from state-owned corporations. Yet Trump’s business empire, from which he refuses to divest, is continually receiving emoluments from foreign states in the form of cash, loans, licensing deals, and building permits. (In 18th-century parlance, an “emolument” was any good or service of value.)

So CREW has asked U.S. District Judge Ronnie Abrams to rule that Trump’s acceptance of these emoluments is unconstitutional and prohibit him from taking any more. This suit may well fail. If it does, it could help Trump, taking emoluments off the table as grounds for impeachment and allowing his administration to dismiss the issue as fatuous harassment. Democrats would lose a potent rallying cry, and the emoluments criticism would fade from the political arena. The suit is an audacious gamble; it could certainly backfire. But even if it does, it will have a silver lining—functioning as the opening volley in a sustained assault on Trump’s unlawful conflicts of interest.

The Emoluments Clause has never before been tested in court—although the legal luminaries who joined CREW’s complaint appear convinced that judicial intervention is necessary. Eminent constitutional law professors Laurence Tribe and Zephyr Teachout, as well as Erwin Chemerinsky, dean of the University of California–Irvine School of Law, are participating in the suit along with Deepak Gupta, a Supreme Court advocate of considerable renown.

In an interview with NPR, Deepak Gupta talked about the non-profit’s lawsuit against President Trump claiming he is violation of the Emoluments Clause of the Constitution. “The Supreme Court in the 1980s decided a case called Havens that involved housing discrimination organizations,” Gupta said. And that could be a precedence, Gupta said.

Describing that a potential gift to Trump, “describes something that I give you without getting anything in return. And emolument describes a payment where maybe I expect something in return. And the argument that the Trump lawyers are making is, well, this is OK as long as it’s fair market value. That ignores the fact that built into the price is some profit that comes to Donald Trump. And this is not just some abstraction. It’s happening already. And diplomats have told news organizations on the record that they are moving their business there because they want to curry favor with the president.”

Stating the objective of the suit, Gupta, said, “The purpose of this lawsuit is not simply to get some documents in discovery. Although Discovery will be important because President Trump has been so secretive about his holdings. But this is not just about the tax returns. This is about testing the proposition that the framers really meant it when they said that the president has to have undivided loyalty to the American people and should not have financial entanglements with foreign governments.”

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