The battle over whether or not a sitting president can pocket payments from foreign governments despite the Constitution’s clear prohibitions against it, so long as it is laundered through a president’s business interests, looks all but certain to wind up in the Supreme Court. The 4th Circuit Court of Appeals today issued a ruling allowing one such lawsuit to go forward by a 5-4 vote.
At the heart of the case, and what the Supreme Court will sooner or later have to weigh in on, is what the “emoluments” clause of the Constitution actually means. Since the top court is now a bitterly partisan place, it is likely to be decided on bitterly partisan lines—but probably not before the November elections. Like every other precedent-breaking and seemingly illegal thing Trump has done in office for his personal gain, it seems there will be no final decision on whether or not he can do those things until after he has gotten away with doing them.
The meat of the 4th Circuit’s decision allowing the case to move forward is that there is a real and substantive dispute on just what “emoluments” should be taken to mean. Trump’s team, of course, sought to define the clause as prohibiting foreign governments from paying Trump to do an official presidential duty, known to the rest of the world not as an “emolument” but as a bribe.
But the court dryly notes (page 17) that this interpretation is “certainly not indisputable,” and “we can hardly conclude that the President’s preferred definition of this obscure word is clearly and indisputably the correct one.” The Constitution prohibits both gifts and emoluments without attaching them to an explicit required link to an official act (or seems to by nearly every other non-Trumpian interpretation). This would make genuine sense as the founders were not stone-cold morons and certainly understood that lavishing things of value on a president could be a means of seeking favored status, even if the two parties did not agree on just what that favoritism should entail.
(Also note, on the same page, the majority’s footnote referencing the freewheeling claims of the conservative dissenters, which can be found soon afterward in the document and, ahem, are certainly animated in their condemnations.)
So it’s going to go to the Supreme Court, where a conservative majority that has been quite eager to redefine and re-redefine what the Constitution “means” will decide whether, in this case, foreign governments can spend large sums of cash in the sitting president’s for-profit hotel, holding events that provide still more cash to the business via domestic participation, and whether that counts as an emolument or a gift intended to coax their hotelier into treating them more favorably when they come asking for future United States foreign policy favors or whether that is fine because Sucks To Be You, Everybody Else.
Oh good. It’s been a while since Thomas and Alito griftsplained the Constitution to us. Can’t wait to find out what the new meanings of our national documents are and the reasons those meanings will change back yet again when, in the future, a nonconservative is the target of the same examinations.