The New York Times has an article on planned litigation to seek injunctive relief against the Trump administration over the Emoluments Clause. (h/t Indiana Law Blog). The Emoluments Clause in the U.S. Constitution says:
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.
An emolument is a profit or gain. The argument is that foreign powers are going to funnel money through Trump’s business holdings in order to curry favor with him. The Founders were aware that foreign powers would try to buy influence with office holders and this provision is an attempt to stop that.
One argument that caught my eye is that, because Trump’s businesses are corporate entities, profits received by them aren’t attributable to him:
Andy Grewal, a University of Iowa law school professor, argued in an academic paper published last week that a payment to a hotel owned by the Trump family, like the Trump International Hotel in Washington, would not violate the Emoluments Clause because the money is paid to a corporate entity and not to Mr. Trump directly.
I don’t know that I’ve ever seen a case on the Emoluments Clause, so I’m nowhere close to an expert. My guess is that the toughest challenge, and the one it would likely fail, has to do with standing. Who has the right to enforce the clause. The judiciary is likely to try to avoid a head-on collision with the executive and might well say that this is up to Congress to enforce. But, like I said, I could be wrong.
On the other hand, I’d vigorously challenge the notion that the corporate form insulates the President from receiving gifts by proxy through his corporations. Hobby Lobby said that the owners of closely held corporations can assert religious objections to laws that impact the corporations — despite the fact that corporations can’t have religious beliefs. I would argue that, if the corporate form does not prevent religious beliefs from passing through to the corporation, then foreign influence via gifts to a closely held corporation can pass through to an office holder such as Trump.
If the plaintiffs passed the motion to dismiss stage and were found to have standing, they could presumably have a lot of fun with discovery, trying to dig up the various ways in which Trump has wide-ranging conflicts of interest that previous office-holders did not.
This may be the only time that the Hobby Lobby ruling serves most Americans. Maybe.
I heard a Stanford Law Professor state on NPR today that standing, as you so accurately noted, will be a substantial issue. But the speaker said that Trump’s business competitors may have standing if they can demonstrate that Trump’s grafting would give him a competitive advantage and trigger a tangible loss which could be addressed judicially.