The Trump DOJ went ahead and adopted the view of Trump's personal legal team.
Trump's Department of Justice (DOJ) figured out a way to make sure he can continue to rake in profits from foreign governments when dignitaries stay at Trump hotels. All it took was ignoring all previous DOJ guidance about the emoluments clause.
According to an article soon to be published in the Indiana Law Journal, the Trump DOJ adopted an interpretation of the emoluments clause put forth by Trump's personal legal team in June 2017.
Indiana Law professor Kathleen Clark found that the Trump DOJ interpretation "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 Guardian reported.
However, that's not the way that the DOJ has ever interpreted the clause previously. In the past 150 years, there have been over 50 opinions about emoluments. In all of those opinions, the DOJ always interpreted the clause to prohibit any foreign government payments, period.
The emoluments clause is the part of the Constitution that, until now at least, forbade a president from profiting from dealings with foreign governments. Because if foreign governments can curry favor with a president by giving them gifts or money, that president runs the risk of being corrupted by that influence.
The new interpretation is a remarkable shift, and it shows just how much agencies in the Trump era are willing to help Trump do whatever he wants.
In the meantime, Trump's hotels continue to earn money from foreign dignitaries — nearly $200,000 in 2018. Of course, that sum is what the Trump Organization self-reports as the amount spent. Because the Trump Organization is a private one, because there are no meaningful checks and balances on Trump, and because Trump keeps his finances utterly opaque, no one has any idea if that number is remotely correct.
Trump's legal team knew, prior to Trump even being inaugurated, that he was going to face emoluments issues, thanks to the fact that he wasn't going to get rid of his financial holdings or put them in a blind trust. That's why they wrote a white paper back in early January 2017 arguing that the emoluments clause doesn't apply in business transactions if foreign governments pay fair market value.
Besides having no grounding in past legal opinions, the Trump legal team's version of how to interpret the emoluments clause doesn't make much sense. It creates a massive loophole where presidents could accept unlimited sums of foreign government money as long as that money was obtained through a commercial transaction — such as renting hotel rooms — with a business owned by the president. It flies in the face of the intent of the Emoluments Clause, which is to ensure that federal officials are not susceptible to foreign government influence.
The DOJ, in theory, does not exist to do Trump's bidding and help him maximize profits. The agency should serve the nation, not the president. But you wouldn't know that when looking at how the DOJ has dealt with the emoluments question since Trump took office.
Raking in cash from foreign governments, getting the DOJ to do your bidding rather than protecting the nation, and obscuring your profits - all of these are just the Trump way of doing business.
Published with permission of The American Independent Foundation.