This article originally appeared in Politico.
By Karl Racine, Brian Frosh, and Norman Eisen
Karl Racine is the attorney general for the District of Columbia.
Brian Frosh is the attorney general for Maryland.
Mr. Eisen is their former co-counsel in the emoluments litigation and served as President Obama’s ethics czar. He now serves as outside counsel for the nonpartisan Voter Protection Program.
Three and a half years ago, we took President Donald Trump to court over unconstitutional payments he received from foreign and domestic governments through his hotel in downtown D.C. while serving as president. Recently, the Supreme Court declared that our lawsuit and Trump’s appeal of it were moot given that President Joe Biden had taken office. Trump’s departure from the White House may have effectively terminated the case against him, but we still secured a significant victory: Judge Peter J. Messitte of the Maryland federal district court ruled in 2018, the year after we filed suit, that the Constitution forbids the president from receiving anything of value from a foreign or domestic government.
His decision was the first time a court ruled that the Constitution broadly prohibits such transactions, rejecting Trump’s much narrower interpretation that the clause prohibited only transactions involving personal services. Under this interpretation, Trump would not be able to accept payment if he served as a personal driver to Saudi Arabia’s King Mohammed Bin Salman while in office, but the president’s hotels and businesses would be able to accept millions of dollars in cash from the Saudi leader.) As a result of Judge Messitte’s decision, the law we made along the way—still in force—set a standard by which all future presidents will be judged. Now Congress must build upon that to broadly preclude future presidential conflicts and self-dealing.
Our lawsuit focused on two little-known parts of the Constitution whose contours had rarely been litigated: the Foreign and Domestic Emoluments Clauses. The former prohibits holders of elected office from taking “any present, Emolument, Office, or Title, of any kind whatever” from a foreign government without congressional authorization; the latter prohibits them from taking any such benefit from the states.
Though Judge Messitte opened the door to discovery and full litigation of Trump’s corruption, the former president relied on the novelty of the decision to take an unusual mid-case appeal to the Fourth Circuit Court of Appeals. That court eventually and appropriately rejected the appeal, before the Supreme Court found the case moot.
That means Judge Messitte’s comprehensive opinion is the definitive word on the matter and will shape related cases going forward. Challenges against the next president who runs afoul of the Emoluments Clauses will start off at a more developed stage, allowing them to move more swiftly through the court system. A judge hearing such a case need not be weighed down by the novelty of the constitutional question and bad-faith appeals can be rejected more quickly. This change in circumstance will make it difficult to replicate the litigation tactics deployed by the Trump team to gum up the gears of the justice system.
But this work is far from over. The struggle to defend the Constitution during the Trump era yielded the bitter realization that too many of the guardrails upholding our democracy are untested or unenforceable. As three participants in that effort, we believe it would be irresponsible for the country to move past this period without action to address these vulnerabilities. Congress and the Joe Biden-Kamala Harris Administration must work together to reinforce the checks on a rogue president and build stronger controls into the system.
Fortunately, Congress is reportedly set to consider legislation in the weeks ahead—the landmark HR1-SB1 package, sponsored by Congressman John Sarbanes and Senator Jeff Merkley—that offers several badly-needed reforms to protect the public from a corrupt president.
Known as the “For the People Act of 2021,” the legislation applies the same sort of tough ethics rules that apply to executive branch appointees to the president. Our litigation made it abundantly clear that a president can slip through many current loopholes to evade accountability. Chief among them: The president is not bound by the same ethics rules and conflicts rules that other public officials must follow and is not subject to any real requirements regarding transparency. Sarbanes’ and Merkley’s bill heightens disclosure requirements around financial entanglements and requires the president and vice president to divest from ties that pose a potential conflict.
This one-two punch offers a model approach to preventing presidential corruption, combining tough, enforceable rules on divestiture with greater transparency. In the Trump years, the American people were often left wondering whether the president was acting to benefit his own bottom line rather than their well-being. These proposals would fix that, making it easier for the public and the courts to hold a corrupt president accountable.
The legislation also builds additional, automatic anti-corruption safeguards into the White House. For example, it would mandate that a political appointee of the president must recuse themselves on any matter that may affect the financial interests of the president or the president’s spouse. This would remove all pressure from the appointee—no matter how well-intentioned they may be. Instead, these matters would fall to career officials who, thanks to civil service protections, would be free to make a decision without having to worry about even the appearance of impropriety.
Finally, the legislation would make it a legal requirement that all candidates for president and vice president must disclose their tax returns for the 10 years preceding their run for office. The public should not have to rely on presidential goodwill or leaks to the press to understand how candidates made their money—or, for that matter, how much they’ve paid in taxes. With this law, all candidates would understand they must trade some degree of financial privacy for the privilege of campaigning for the people’s trust.
To ensure that no future president can profit from the office as Trump did, Congress should also pass a law enforcing the emoluments prohibition. To avoid any doubt about how to deal with a rogue president like Trump, the law should codify Judge Messitte’s ruling—specifically that the Emoluments Clauses refer to anything of value. Turning that strong template into a statute—limiting the receipt of foreign or domestic emoluments—would shut off any spigot of money flowing from foreign or domestic governments into the president’s coffers.
Last year’s “Protecting Our Democracy Act,” which was introduced in the House and the Senate but did not make it to a vote in either chamber, also deserves reconsideration, including its anti-emoluments provisions. It would further strengthen the capacity of Congress and the courts to enforce the Foreign and Domestic Emoluments Clauses. This legislation codifies those clauses, tracking Judge Messitte's decision, allowing Congress to bring civil actions over such violations, enhances financial disclosure requirements related to emoluments and establishes enhanced enforcement vehicles for Congress and for executive branch entities.
The 117th Congress should reconsider these anti-emoluments proposals, and add a twist to address the stalling tactics that we faced. The legislation should also have a disgorgement remedy requiring the officeholder to give up any ill-gotten gains with interest. If the president also faced increasing civil penalties based on the duration of the violation, it would further discourage his or her defense team from the approach of forcing a lengthy litigation process to run out the clock.
The American people delivered the final judgment on President Trump’s corruption. While that rendered our emoluments case moot in the Supreme Court, the court’s decision not to hear the case preserved a legal standard that we can hold future presidents to going forward. That’s an important success—but unless it’s paired with new laws to constrain a corrupt president, it will only be a partial one.
It’s now up to Congress to ensure the rule of law does not bend so easily next time.