Why Democrats should forget collusion and focus on emoluments

Unmoved by the enthusiasm of House freshmen and Joe Biden alike, Democratic leadership has no apparent intention of impeaching President Trump on the basis of Special Counsel Robert Mueller's report and/or former Trump attorney Michael Cohen's alleged campaign finance violations. This is at least partly a matter of strategy: Impeachment proceedings are realistically unlikely to conclude with removal measures under a GOP-controlled Senate, and removing Trump from office would be seen by the public, left and right both, as the defining indicator of impeachment success.

But there is a case against the president which congressional Democrats can plausibly win on: emoluments.

Granted, this does not offer the treason thrill of Mueller-inspired collusion and obstruction accusations, nor does it have the carnal scandal of Cohen's porn star payoff claims. The emoluments case is just ordinary corruption motivated by ordinary greed — and that's precisely why it may be actionable in a way these other cases are not.

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The Constitution's emoluments clause bans the president from accepting gifts — which may be understood to include any "profit," "gain," "benefit," or "advantage" — from foreign governments absent congressional consent. Because Trump did not divest his assets in the Trump Organization on election, business between his properties and foreign governments potentially runs afoul of this anti-bribery measure. (The Trump Organization has promised to donate profits from foreign entities to the U.S. Treasury, but the math on those donations is disputed, as is the question of whether this pledge is enough to avoid conflicts of interest.)

In March, for example, Trump tweeted that his golf course in Scotland "furthers U.K. relationship!" — by which he seemed to mean that his personal property could strengthen official ties between Washington and London.

Meanwhile, the first eight months of Trump's tenure saw 13 requests from foreign governments to the State Department to rent from Trump World Tower in New York City, which Reuters notes is "more solicitations from foreign governments for new or renewed leases in that building than in the previous two years combined." Saudi Arabia insisted its sole interest in the building was the proximity to the United Nations headquarters — but surely the tower was just as convenient to the U.N. before Trump took office?

And then there's Trump’s hotel in Washington, which has become a popular place for foreign delegations to stay. The Embassy of the Philippines held a celebration there because, in the words of Philippine Ambassador Jose Manuel Romualdez, the venue choice was "a statement that we have a good relationship with this president." Does a statement like that amount to a bribe?

Plenty of the president's critics say yes, and already three emoluments lawsuits against Trump are underway. The most promising of these may be the one brought by about 200 Democratic senators and representatives led by Sen. Richard Blumenthal (D-Conn.). After winning permission to sue Trump in September, the plaintiffs scored another victory last week when a federal district judge rejected the Justice Department's push for a narrow interpretation of the emoluments clause which would exclude commercial transactions. The decision cited a 1993 DOJ opinion declaring the language of the clause "both sweeping and unqualified." It insisted that as president Trump has "no discretion [and] no authority" to decide whether to perform his constitutionally-mandated duty of seeking congressional permission when foreign governments' emoluments are offered.

That Trump would try to bypass such a process in his eagerness to abuse his position for personal gain is not difficult to imagine. This is a man who thought it suitable to use eminent domain to try to hound an elderly widow from her home so his soon-bankrupt casino could have a new limo parking lot. He loves the idea of government seizing private property so a "tremendous economic development" can move forward. He has a long history of seeking to use state power to benefit his own bottom line, so why would he drop that habit now?

Trump's entire brand is gaudy and unscrupulous greed. "My whole life I've been greedy, greedy, greedy," he said at a 2016 rally. "I've grabbed all the money I could get. I'm so greedy." A lifelong embrace of greed like that does not dissipate overnight. The presidential oath of office has no power to dispel it. Trump the president is just as greedy as Trump the businessman, and he is probably just as willing to use the state to his advantage, too — only now, he's operating from the other side of the law.

Trump has defended himself against emoluments allegations by noting that, though he did not divest himself from his business, his sons are managing it while he's in office. But the Constitution doesn't have an "unless you put your kids in charge" exception. It doesn't exclude commercial transactions, and it doesn't address the president's motives, good or ill, in accepting a foreign emolument. Trump doesn't need to have actually granted (or even wanted to grant) special favors in exchange for the business his properties are getting from foreign governments for his failure to seek congressional permission to be unconstitutional.

That's a pretty low bar to clear, and it seems likely congressional Democrats can clear it. True, emoluments violations are improbable as a path to impeachment and removal for all the reasons that apply to other potential impeachment cases. But a court victory could serve to shift marginal public opinion in an electorally consequential manner, open the president's finances to further legal scrutiny, or simply detract from Trump's ability to pursue policy ends on which he could otherwise focus.

The Mueller and Cohen cases may offer a bigger reward, but they also come with higher risks. Emoluments may be a little boring and procedural, but if the goal is demonstrating beyond a doubt that Trump broke the law, it's the best thing going.