One of the biggest political crises in the United States today is the epidemic of judges assuming powers far beyond their office and making rulings totally unmoored from anything in the Constitution. So it’s positively remarkable whenever a judge makes a decision admitting he or she has no business in a particular case. That case is the emoluments clause lawsuit against the President.
The New York Post reports that Judge George Daniels in Manhattan has said he might dismiss the “emoluments clause” lawsuit against President Donald Trump, which concerns Trump’s hotels and restaurants accepting money from foreign governments while he serves as president, on the simple grounds that “Clearly the Constitution was written so that Congress would make the determination,” rather than the judiciary.
“They don’t have to sit on their hands if they think there’s a problem. They can do something about it,” Judge Daniels quipped.
The judge made the remarks at a packed hearing over the Justice Dept.’s request to toss the lawsuit, which claims that Trump is violating emolument clauses of the Constitution by accepting money from foreign governments through his hotels and restaurants.
But Daniels said that those clauses of the Constitution were written in such a way that even if Congress believed the president was receiving “bribes” from foreign governments through his businesses, they could still OK it.
“I’m not sure there’s anything in the Constitution or in law that would prevent Congress from consenting … even if it they determined it was a bribe,” he said.
Lawyers for CREW objected to the notion that they should wait for Congress to act, arguing that President Trump should have sought permission before taking office.
“The problem here is the president hasn’t told Congress what payments he has accepted,” CREW lawyer Deepak Gupta argued.
However, Daniels didn’t give the Trump Administration a completely free pass; he also disputed the Justice Department’s argument that the Founding Fathers wouldn’t have been concerned about the president happening to profit from private business transactions, rather than something like direct bribes to the president from a foreign power which could potentially influence his decisions.
“Just because it’s a business transaction doesn’t necessarily mean it’s not an emolument,” Daniels said, illustrating the point with a hypothetical scenario in which a foreign government offers a president a million dollars to sign a treaty, but hides it in the form of $1 million worth of purchases from a business the president owns.
It’s an interesting question, and we’ll see what happens regarding this particular case. Russia conspiracy-mongering aside, there’s currently little indication that Trump’s policies as president have been colored by his financial interests.
Additionally, as the continuing adventures of the Clinton Crime Family seem to remind us every day, actual conflicts of interest tend to take rather different forms, and are at least as likely to take the form of non-profit “foundations” as they are eeeeevil capitalist businesses. The Clinton Foundation would likely count as an emoluments case if anything ever did.
Regardless, it’s incredibly refreshing to see a judge both trying to analyze how the people who wrote the Constitution would have come down on the question rather than what he thinks the answer should be, and that the presence of a problem does not necessarily mean it’s the unelected branch’s place to devise a solution.