Professor Bruce Green wrote an op-ed for Bloomberg Law about Trump’s possible legal representation following an emoluments clause lawsuit filed against him.
If President Trump manages to convince Mexico to pay to build a wall at our border, one might complain that this is bad foreign relations or otherwise regrettable public policy. But one cannot fairly characterize this use of presidential power as corrupt, because Mexico’s money would go into the treasury, not into the President’s pocket.
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In contrast, the injunction action brought against President Trump under the Constitution’s Emoluments Clause argues that he is using his office to obtain personal profit from foreign officials.
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The Emoluments Clause forbids a federal official, without congressional consent, from accepting any present or Emolument from a foreign State. The plaintiff, a not-for-profit called Citizens for Responsibility and Ethics in Government (“CREW”), will have a hard time convincing a court that President Trump’s business activities should be restrained based on this previously obscure constitutional provision.
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First, the defense will argue that Congress alone may decide what the Emoluments Clause means, and that even if the courts can conceivably enforce this provision, CREW is not the right plaintiff because it is not directly injured. Beyond that, it is questionable whether payments to Trump-family businesses – e.g., from foreign officials lodging at Trump hotels and resorts – comprise gifts from foreign States to the President.
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There is a more immediate question, however: Who should defend the lawsuit – the U.S. Justice Department or a private lawyer hired and compensated by Donald Trump himself?
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Ordinarily, when public servants are sued for acts done in their official capacity, government lawyers defend them or the government pays for private lawyers to do so. For example, when the State of Washington sued “Donald Trump, in his official capacity as President of the United States,” along with other federal officials, the Justice Department came to their defense.
However, when public officials are sued in their personal capacity – such as when Paula Jones sued President Clinton for sexual harassment – the officials themselves must hire and pay private lawyers. Under federal law, President Clinton could set up a defense fund to solicit private donations, but he could not ask the taxpayers to foot his legal bill.
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One might expect Donald Trump to have to finance his own defense to the constitutional lawsuit, given that he is accused of profiting personally from his public position. But it was reported in January that the Justice Department will be defending President Trump at taxpayer expense. Why? Probably because CREW sued President Trump in his official capacity, not his personal capacity.
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Even so, it may seem troubling for the Justice Department to handle the defense instead of outsourcing the job to a private lawyer funded out of the federal treasury.
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The Justice Department’s role in zealously defending the lawsuit may undermine the quality of its future advice on the meaning of the Emoluments Clause and other government integrity laws. Besides prosecuting and defending litigation, the Department gives advice to federal officials about federal law’s meaning and application. The Department’s lawyers probably have a bias in favor of broad executive power, but they are generally expected to interpret the law like disinterested judges instead of advocates. They get criticized when they appear to endorse imbalanced interpretations of the law, as was true when the Department under the second President Bush issued the so-called “torture memos” to legitimize water boarding.
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In the past, Justice Department lawyers have painstakingly interpreted the Emoluments Clause in particular. In 2009, the Justice Department issued a 13-page memo concluding, only after research and reasoned analysis, that President Obama could accept the Nobel Peace Prize without congressional approval. The memo reasoned that although the Emoluments Clause applies to gifts not only from foreign states but also from their instrumentalities, the Norwegian government had little role in selecting who receives the Nobel Peace Prize. The memo also cited historical precedent – that Congress raised no concerns when Presidents Theodore Roosevelt and Woodrow Wilson received the same award.
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In the pending litigation, the Justice Department will be an advocate, not an advisor. It can argue any position helpful to the defense that is not outright frivolous. Once the Department makes arguments in court, it will be hard to back away from them – and to take a more measured approach – when advising public officials on the same subject in the future.
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Moreover, although the Department will nominally defend the President in his “official capacity,” if the lawsuit reaches the point where facts are submitted and evidence is exchanged, the lawyers may have to speak confidentially with Mr. Trump about his finances and the operation of his businesses. If the Department agrees to keep Mr. Trump’s information confidential, it may be disabled from later investigating him and his enterprises if they are accused of other misconduct.
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Indisputably, the Justice Department’s principal client is the United States. Defending the CREW lawsuit does not serve the country well. The case should be handled by private lawyers.