Barrett declines to weigh in on emoluments challenge to Trump’s business dealings

Supreme Court nominee Amy Coney Barrett on Wednesday declined to comment on whether President Trump’s family businesses or its dealings with foreign governments and patrons run afoul of the Emoluments Clause of the Constitution.

The foreign and domestic emoluments clauses of the nation’s founding document bar the president from accepting gifts from foreign states or increased compensation from domestic sources.

Barrett declined to comment on the issue, claiming it could come before the Supreme Court in the near future, even though the high court recently dismissed a suit brought by 29 Senate Democrats alleging Trump violated the clause.

“As a matter that’s being litigated, it’s very clear that that would be one I can’t express an opinion on because it could come before me,” she said, citing a case the 4th Circuit Court of Appeals recently considered in which Maryland and the District of Columbia argued that the flood of foreign business at Trump International Hotel on Pennsylvanian Avenue in the nation’s capital has impacted local businesses. 

Barrett was pressed by Sen. Pat Leahy (D-Vt.), who asserted that Trump has personally benefitted from foreign companies and governments doing business with his properties.

“Now we find that 200 companies and foreign governments have patronized Trump properties and at the same time they were getting benefits from his and his administration. [In the] first two years of his presidency, he earned $73 million from his properties abroad,” Leahy said.

“Do you think these companies and foreign governments would have fallen in the Framers’ zone of concern in writing the Emoluments Clause?” he asked Barrett.

She said she could not offer a view.

“It’s under litigation. There was a 4th Circuit case that recently involved this question,” Barrett replied.

A district court rejected Trump’s attempt to dismiss the lawsuit and the 4th Circuit declined to overrule the decision.

Trump also faces a lawsuit brought by Citizens for Responsibility and Ethics in Washington and a local restaurant owner arguing that Trump violated the Foreign Emoluments Clause. A district judge dismissed the suit, but the 2nd Circuit Court of Appeals reinstated it.

Barrett declined to embrace Leahy’s framing of the emoluments clause as an “anti-corruption clause.”

“I don’t know if I would characterize it as an anti-corruption clause,” she said. “I think I would characterize it … [as] designed to prevent foreign countries from having influence.”

The Supreme Court on Tuesday announced it had decided not to take up the case by 29 Senate Democrats who alleged that Trump, through his businesses, accepted “unauthorized financial benefits from foreign states.”

The decision, however, was announced after the death of Justice Ruth Bader Ginsburg left the high court with only eight sitting justices. Four justices must agree to a review for the court to hear a case.

The lawsuit from Senate Democrats was generally regarded as the weakest of the pending legal challenges against Trump over the Emoluments Clause, as courts typically prefer to give standing to private citizens and states over members of Congress in legal challenges to the executive branch.