A liberal group, representing economic competitors to the Trump hotels, sued the president for violating the Constitution’s Emoluments Clause. Yesterday, a federal judge dismissed their suit on the grounds that hotels that lost business because of Trump’s office lacked the standing to enforce the Constitution. The ruling does not deny that Trump is using his office for personal enrichment. What it reveals is that Congress is letting him get away with it.
One of the many ways Trump has broken from all historic precedent is that he’s continued to operate his sprawling business even while holding office. This creates wide opportunities for bribes and influence. Since Trump knows who is paying him what — and the public does not — foreign governments have the chance to win his favor by making favorable deals with him. The vast majority of such deals would be happening in secret, but elements of it have taken place in broad daylight, like diplomats taking care to stay in Trump’s hotel when they visit Washington. “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’” one Asian diplomat told the Washington Post.
This isn’t merely gross. It also violates the Constitution — specifically, the Emoluments Clause, a provision forbidding the president from accepting rewards from foreign countries. There is also a domestic Emoluments Clause, intended to keep the president from being bribed.
The lawsuit was brought by representatives of competing hotels, who claim they have lost business to the president because his hotel can offer the side benefit of favorable treatment by the United States government, and theirs can’t. The ruling, by Judge George Daniels, dismissed their legal standing to bring this case. It does not, however, dismiss the Emoluments Clause as a legal question. It leaves the clear impression Trump is in plain violation of it.
“There can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence,” writes Daniels, “while the Domestic Emoluments Clause was meant to ensure presidential independence.”
Alas, the competing hoteliers can’t enforce it. Only Congress can. “Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power.”
That may be a fair reading of the Constitution. It is not, however, a plausible description of the federal government as it stands today. Which is a problem.
The Constitution may have imagined that Congress would operate as a competing body with the executive branch. But the founders did not imagine how the party system would develop. In reality, Congress and the presidency are both closely allied arms of the Republican Party. Congress has ignored Trump’s open violations of the Emoluments Clause. It has even repeatedly blocked the cursory step of requiring disclosure of his tax returns so the public can merely know who might be bribing the president.
This dynamic is most clearly displayed in Robert Mueller’s investigation into Russia’s electoral interference, the more high-profile case of presidential corruption. Republican senators initially showed some desire to protect the probe, and members of both parties supported bills to ensure Trump could not easily fire Mueller. But those efforts have ground to a halt. “We’re still having the discussion,” Sen. Thom Tillis (R-N.C.), the co-author of one of the bills, said, “It’s not driven by any current events.” Sen. Lindsey O. Graham (R-S.C.), another co-author of one of the bills, said, “I don’t really know.” Republicans appear to be running out the clock on efforts to backstop Mueller, even as the White House’s campaign to discredit him accelerates.
Meanwhile, the House is running a counter-investigation on Trump’s behalf. House Republicans have been gathering secretly to plot their defense of the administration, and have largely turned their committees over to the task of generating grist to charge the FBI with liberal bias. Some of them have admitted being in touch with the White House.
This is all perfectly natural behavior. The fate of Republicans in Congress is tied invariably to the fate of the Republican in the White House. If his corruption is uncovered, they will suffer for it; so they have every incentive not to allow the corruption to be uncovered at all.
Daniels’s emoluments ruling notes, “Congress is not a potted plant. It is a co-equal branch of the federal government with the power to act as a body in response to Defendant’s alleged Foreign Emoluments Clause violations, if it chooses to do so.” What he is telling us is that many parts of the Constitution will be meaningless unless Democrats win control of Congress.