DOJ argues Congress can’t take non-legislative steps against Trump on emoluments

The Department of Justice argued before a federal appeals court on Monday that the only way for Congress to take action against President Trump over alleged violations of the Constitution’s emoluments clause would be to pass legislation.

During oral arguments before the D.C. Circuit Court of Appeals on Monday, Hashim Moopan, an attorney with the Justice Department, said that a group of lawmakers suing Trump have no recourse other than legislation for taking action if they think the president has violated the Foreign Emoluments Clause.

“The only role that the constitution gives Congress with respect to the Foreign Emoluments Clause is to allow [emoluments],” Moopan said.

“The Constitution already prohibits the acceptance of emoluments, absent congressional consent. So unless they are going to stand up here and say that what they really want to do is approve them, and that’s why they’re so injured, their argument just doesn’t make any sense,” Moopan said.

The courts are grappling with how to interpret the constitution’s Foreign Emoluments Clause which prohibits government officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without the consent of Congress.

A group of more than 200 Democratic lawmakers are arguing that the president robbed them of their role to approve any emoluments he receives by not seeking congressional consent.

The provision has largely gone unexamined by the courts over the past 230 years, but was revived in several cases against the president for not selling off his network of private businesses, including hotels frequented by foreign diplomats.

At least one judge appeared skeptical of the argument presented by Moopan, that essentially nobody has standing to sue the president over the constitutional provision.

Judge David Tatel, who was appointed by Bill Clinton, pointed out that the Justice Department has been arguing in other cases that the president is largely immune to congressional oversight, which would make it difficult for lawmakers to address the issue.

“Here’s what troubles me about your position,” said Tatel. “It seems to me that if you were right about standing — I’m not saying you are — it does raise the question of what is the remedy for alleged violations of the Emoluments Clause? And it seems to me one easy answer to that is congressional oversight. But you’re resisting that in other cases. In other cases, you’re saying congressional oversight is inappropriate. So I’m just wondering what is Congress to do in a case where it has reasons to think the Emoluments Clause is being violated?”

Moopan argued that Congress could simply vote to ban the behavior that they are worried about, and that Trump’s businesses are not violating the ban on emoluments.

After the lawmakers sued Trump in 2017, a district court judge ruled that they had standing to sue the president because they had demonstrated that Trump had nullified their role in approving emoluments.

Before the case could continue, Trump appealed to the D.C. Circuit. Like several other cases between the president and Congress, the emoluments lawsuit could wind up in the Supreme Court.

Trump is fighting several subpoenas from House Democrats in court. The documents they’re requesting — including his tax returns, personal financial records and business records — would shed light on the extent of the president’s network of private businesses.

Trump’s hotels have been a magnet for allegations of emoluments violations. Last year, the Washington Post reported that the Saudi government had paid $270,000 at the Trump International Hotel in Washington as part of a campaign to lobby Congress on legislation.

Moopan argued on Monday that the president profiting off that does not constitute an emolument. Under the Justice Department’s view, the clause would be violated only if the Saudi government in this scenario had given Trump an expensive gift.

The Democratic lawsuit is not the only case that will be argued over emoluments this week. On Thursday, the Justice Department will have to again defend the president’s business interests in arguments before the Fourth Circuit Court of Appeals in Richmond, Va. against a similar lawsuit from attorneys general of Maryland and the District of Columbia.

Updated at 12:44 p.m.