This is really wild—Donald Trump’s hotels have apparently been exempted from the emoluments clause, according to recently released Department of Justice filings. Here’s the rub, from The Guardian, citing an article by Kathleen Clark in the Indiana Law Journal:
Clark’s article notes that in more than 50 legal opinions over some 150 years justice department lawyers have interpreted the clause in a way that barred any foreign payments or gifts except for ones Congress approved. But filings by the department since June 2017 reveal a new interpretation that “… would permit the president – and all federal officials – to accept unlimited amounts of money from foreign governments, as long as the money comes through commercial transactions with an entity owned by the federal official,” the professor writes.
In short, gifts from federal governments are fine if they go through the president’s companies. In this case, his hotels. It shouldn’t come as a surprise that this is essentially an echo of what Trump’s own lawyers argued:
The justice department stance now closely parallels arguments made in a January 2017 position paper by Trump Organization lawyer Sheri Dillon and several of her law partners. On 11 January 2017, just days before he was sworn in, Dillon said Trump isn’t accepting any payments in his “official capacity” as president, as the income is only related to his private business. “Paying for a hotel room is not a gift or a present, and it has nothing to do with an office,” Dillon said.
That is so obviously pure, unfiltered BS that it barely merits a response—if you can accept money and gifts through your private business, it can absolutely affect policy made in a political office. It’s the definition of bribery, actually, and it’s why the emoluments clause exists in the first place! If you can’t prevent this kind of gift, then only a very, very stupid president—one who accepted wads of cash from foreign agents, rather than just routing it through a business—would ever be flagged by the emoluments clause.
“The heart of the matter is that these are clauses meant to guard against undue foreign influence and conflicts of interest,” John Mikhail, a professor at Georgetown Law Center, said.
Yeah, well…duh. As the Guardian points out, attorney generals in D.C. and Maryland have filed lawsuits against the Trump International Hotel in D.C., and Congress has followed up with lawsuits citing conflict of interest.
As usual, we have no real clue what will come of any outrage stemming from the DOJ rulings, if any. The ongoing question about this president is whether the Constitution actually applies to him, and until we see more evidence, the best guess is always “probably not.”