'; Trump’s trademark troubles, Neil Gorsuch and the originalist prism

Trump’s trademark troubles, Neil Gorsuch and the originalist prism

May 8, 2017 Chicago Daily Law Bulletin

Donald Trump’s unorthodox presidency continues to generate unprecedented issues, foremost among them the thorny ethical questions raised by the president’s ongoing connections to his sprawling (and heavily branded) business empire.

Now, the TRUMP® trademark has moved into the spotlight, raising another groundbreaking question: Is the grant of a foreign trademark registration an “emolument” the president is constitutionally barred from receiving?

The so-called “foreign emoluments clause” of the Constitution, Art. I Sec. 9, says that “No Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The clause has never been litigated in its nearly two hundred and thirty year history, until now.

A liberal watchdog group, The Citizens for Responsibility and Ethics in Washington (“CREW”), has filed suit against President Trump, alleging that he has violated the emoluments clause “since the opening moments of his presidency” by, among other things, accepting lease payments from foreign tenants in New York’s Trump Tower, receiving room rental and restaurant fees in Washington, D.C.’s Trump International Hotel, and as the recipient of “gratuitous Chinese trademarks.”

With dramatic flair, the complaint alleges that despite ten years of consistent denials, the Chinese Trademark Office recently reversed course and granted a TRUMP trademark registration for construction services, but only after the president pledged to honor the “One China” policy in a conversation with Chinese President Xi Jinping.

Represented by an all-star team of constitutional scholars, CREW asks that Judge Ronnie Abrams enjoin further violations and, importantly, require Mr. Trump to “release financial records sufficient to confirm” his compliance.

The president declared the suit “totally without merit,” and earlier made the sweeping statement that “the president can’t have a conflict of interest.” These questions will now be tested, first by the Department of Justice’s forthcoming motion to dismiss, to be filed in early June. It is likely the motion will challenge CREW’s standing, and argue that, as a matter of law, the emoluments clause does not apply to “market exchange” transactions like renting hotel rooms and pursuing trademark registrations.

It is not hard to imagine this unprecedented question making its way past Judge Abrams, an Obama appointee (can you imagine the Twitter tirade?) through the Second Circuit, and to the Supreme Court, where it would put the president on a collision course with his recently confirmed appointee, freshman Justice Neil Gorsuch.

In his nomination speech, Mr. Trump called Gorsuch “the best replacement possible” for Antonin Scalia, and praised him as a judge who “loves the Constitution” and will interpret the document “as written.” Indeed, the questions posed by Justice Gorsuch in the initial cases before him on the High Court – “Wouldn’t it be a lot easier if we just followed the plain text of the statute?” – suggest that he will adhere to Scalia’s “originalist” approach, interpreting the words of statutes, including the Constitution, as they were understood at the time they were written.

As if anticipating a Supreme Court showdown, CREW’s complaint references a Brookings Institution white paper exploring the “text” and “original meaning” of the emoluments clause, which originated in the Articles of Confederation, before being incorporated into the Constitution. The paper concludes that, at the time of ratification, the word “emolument” was a “catch-all” term for many kinds of “improper remuneration.” When the framers added the phrase “of any kind whatever,” the term became “doubly broad,” such that it “unquestionably reaches any situation in which a federal officeholder receives money, items of value, or services from a foreign state.”

At a minimum, there is a credible argument that in the late 1700s, “emolument[s]…of any kind whatever,” was understood as a broad prophylactic against receiving anything of value from a foreign government. An originalist approach to the text could certainly lead to this conclusion, creating a curious scenario. If the emoluments clause does reach the Supreme Court, Justice Gorsuch could make his first bold mark on American jurisprudence with a deciding vote that announces the Court’s reconstituted conservative majority, adheres to originalist theory, honors the famed predecessor he was intended to replace, and in the process, hoists the president by his own petard.