IRVINE (CBSLA.com/AP) — A lawsuit Monday alleged that President Donald Trump is violating the Constitution by allowing his business to accept payments from foreign governments.
Trump is violating the so-called emoluments clause in the Constitution that prohibits him from receiving money from diplomats for stays at his hotels or foreign governments for leases of office space in his buildings, according to the suit filed by a legal watchdog group. The language in the clause is disputed by some legal scholars, setting the stage for a court fight with the White House.
Erwin Chemerinsky, UC Irvine School Of Law dean and constitutional law scholar, is among the co-counsel involved in the lawsuit, filed in the Southern District of New York, by liberal-funded watchdog group Citizens for Responsibility and Ethics in Washington.
“This is an unprecedented suit because never before in history has a president so clearly violated the emoluments clause of the Constitution,” Chemerinsky told KNX 1070. “This is an important provision that’s meant to limit foreign influence over those who are in positions of trust in the United States government.”
The lawsuit was filed by two former White House chief ethics lawyers: Norman Eisen, who advised Barack Obama, and Richard Painter, who worked under George W. Bush. The two have expressed frustration that Trump has refused to take their recommendation and divest from his business, and feel they had no choice but to take legal action.
“These violations of the Foreign Emoluments Clause pose a grave threat to the United States and its citizens,” according to the lawsuit. “As the Framers were aware, private financial interests can subtly sway even the most virtuous leaders, and entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic.”
White House Director of Strategic Communications Hope Hicks said that “the president has no conflicts,” and referred to arguments made by Trump lawyer Sheri Dillon at the president’s news conference earlier this month.
Dillon has said the framers did not intend for the Constitutional prohibition to apply to fair-value exchanges, such as paying for a hotel room or venue space at a hotel.
“No one would have thought the Constitution was written that paying your hotel bill was an emolument,” Dillon said at a news conference.
CREW faces several legal hurdles, including making the case that it even has standing to bring the lawsuit.
“We have never had a president who has in a significant way accepted foreign payments.” CREW Executive Director Noah Bookbinder said. “There are a lot of issues that have to be litigated for the first time.”
Bookbinder said his group will argue it has standing because the president’s violation has forced his organization to divert all it is resources to this fight rather than other issues, and therefore is harming it.
That line drew criticism from some legal experts.
“CREW’s argument for how it has standing to bring this lawsuit barely passes the laugh test,”said Robert Kelner, chairman of the election and political law group of the firm Covington & Burling and an experienced Republican attorney. “The courts will toss this one out.”
Edwin Williamson, a former State Department legal adviser, said that CREW will struggle to prove its case. He said the emoluments clause does not apply the payment of a “market price” for a stay at a hotel.
“I don’t expect it to succeed,” Williamson, said, “and that doesn’t even get to the standing issue.”
In his news conference, Trump said that he would not sell his ownership in his company, but instead hand over control of his company to his two adult sons.
He announced several other measures in an attempt to mollify critics who contend that his financial interest as head of a global real estate company could conflict with his pursuit of the public good. He also vowed, for instance, that his company would strike no more deals abroad.
Trump also pledged to donate any profits from foreign governments using his hotels to the U.S. Treasury.
Trump has repeatedly said federal rules on conflicts do not apply to the president. His lawyer, Dillon, a partner a Morgan Lewis and Brockius, has called his moves to limit conflicts “extraordinary.” But the steps have been widely panned by government ethics lawyers as insufficient.
Eisen and Painter have urged Trump to sell his holdings and put the cash in a blind trust, following the example of recent presidents.
Trump has also defied the long tradition of presidential candidates making public their tax returns, saying he would be happy to do so after the completion of an Internal Revenue Service audit.
However, the first public petition to the new White House called for the immediate release of Trump’s tax documents, and it quickly amassed more than 250,000 signatures — well over the 100,000 needed to trigger an official response. The petition claims the returns are necessary to ensure Trump is not violating the emoluments clause of the Constitution.
Senior adviser Kellyanne Conway said over the weekend it’s not happening. “The White House response is that he’s not going to release his tax returns,” Conway said on ABC’s This Week. “We litigated this all through the election. People didn’t care.”
Besides Chemerinsky, Eisen and Painter are joined in the CREW lawsuit by Constitutional law scholars Laurence H. Tribe, Zephyr Teachout, and Deepak Gupta of the law firm Gupta Wessler.
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