Blumenthal v. Trump

• Court: District Court, District of Columbia
• Decided: April 30, 2019
• Docket: Civil Action No. 2017-1154
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________ ) Senator RICHARD BLUMENTHAL, ) et al., ) ) Plaintiffs, ) ) v. )Civil Action No. 17-1154 (EGS) ) DONALD J. TRUMP, in his official ) capacity as President of the ) United States, ) ) Defendant. ) _________________________________)

MEMORANDUM OPINION

I. Introduction

In its previous Opinion, the Court held that plaintiffs,

approximately 201 Members of the 535 Members of the United

States Senate and House of Representatives, had standing to sue

defendant Donald J. Trump in his official capacity as President

of the United States (“the President”) for alleged violations of

the Foreign Emoluments Clause (“the Clause”). See Blumenthal v.

Trump, 335 F. Supp. 3d 45, 72 (D.D.C. 2018) (“Blumenthal I”).

The President has moved to dismiss the Amended Complaint for

failure to state a claim because, inter alia, he contends that

“Emolument” should be narrowly construed to mean “profit arising

from an official’s services rendered pursuant to an office or

employ.” Def.’s Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 15- 1 at 38. 1 The President’s definition, however, disregards the

ordinary meaning of the term as set forth in the vast majority

of Founding-era dictionaries; is inconsistent with the text,

structure, historical interpretation, adoption, and purpose of

the Clause; and is contrary to Executive Branch practice over

the course of many years.

Pursuant to the Clause, certain federal officials,

including the President, shall not “accept” an “Emolument” from

“any King, Prince, or foreign State” without “the Consent of the

Congress.” U.S Const. art. I, § 9, cl. 8. In Count I, plaintiffs

seek declaratory relief pursuant to 28 U.S.C. § 2201 in the form

of a declaratory judgment stating that the President is

violating the Clause when he accepts Emoluments from foreign

states without first seeking the consent of Congress. Am.

Compl., ECF No. 14 ¶¶ 85-86. In Count II, plaintiffs seek

injunctive relief pursuant to the Court’s inherent authority to

grant equitable relief and pursuant to 28 U.S.C. § 1331 in the

form of a Court order enjoining the President from accepting

“any present, Emolument, Office, or Title, of any kind whatever”

from a foreign state without obtaining “the Consent of the

Congress.” Id. ¶ 92.

1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document. 2 In holding that plaintiffs had standing to sue the

President in Blumenthal I, the Court deferred ruling on the

remaining arguments in the President’s motion to dismiss:

(1) failure to state a claim upon which relief can be granted;

(2) lack of a cause of action to seek the relief requested; and

(3) the injunctive relief sought is unconstitutional. Mot. to

Dismiss, ECF No. 15-1 at 17-18.

Upon careful consideration of the President’s motion to

dismiss, the opposition and reply thereto, the relevant

arguments of amici, 2 and for the reasons explained below, the

Court finds that: (1) plaintiffs have stated a claim against the

President for allegedly violating the Foreign Emoluments Clause;

(2) plaintiffs have a cause of action to seek injunctive relief

against the President; and (3) the injunctive relief sought is

constitutional. The Court therefore DENIES the portions of the

motion to dismiss that were deferred in the Court’s prior Order.

II. Factual Background

Plaintiffs allege that the President “has a financial

interest in vast business holdings around the world that engage

in dealings with foreign governments and receive benefits from

those governments.” Am. Compl., ECF No. 14 ¶ 2. In particular,

the President owns “more than 500 separate entities–hotels, golf

2 The Court appreciates the illuminating analysis provided by the amici. 3 courses, media properties, books, management companies,

residential and commercial buildings, . . . airplanes and a

profusion of shell companies set up to capitalize on licensing

deals.” Id. ¶ 34 (internal quotation mark omitted). Since being

elected President, he has “not divested or otherwise given up

his ownership interest in his worldwide business holdings.” Id.

¶ 36.

As a result of his financial interests, plaintiffs allege

the President has accepted, and will accept in the future,

Emoluments from foreign states. Id. ¶ 37. Indeed, the President

has acknowledged “that his businesses receive funds and make a

profit from payments by foreign governments, and that they will

continue to do so while he is President.” Id. Public reporting

has also confirmed this to be the case. Id.

Plaintiffs allege that “[t]hese various benefits from

foreign governments—payments, loans, permits, exemptions, policy

changes, and intellectual property rights—constitute prohibited

‘Emolument[s]’ and/or ‘present[s]’ under the Foreign Emoluments

Clause . . . .” Id. ¶ 38 (citation omitted). Specifically, the

President has allegedly accepted valuable intellectual property

rights from the Chinese government without seeking and obtaining

the consent of Congress. Id. ¶¶ 44-50. The President has also

allegedly accepted payments for hotel rooms and events from

foreign diplomats and from foreign lobbying groups paid for by

4 foreign governments without seeking and obtaining the consent of

Congress. Id. ¶¶ 52-57. The President has allegedly accepted

payments from foreign governments derived from real estate

holdings, id. ¶¶ 58-62, as well as licensing fees paid by

foreign governments for “The Apprentice,” id. ¶¶ 63-65, all

without seeking and obtaining the consent of Congress, id. ¶¶

59, 62, 65. Finally, the President has allegedly accepted

regulatory benefits from foreign governments without seeking and

obtaining the consent of Congress. Id. ¶¶ 66-67.

III. Standard of Review

“A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain “‘a short and plain statement of the claim showing that

the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (alteration in original) (quoting Conley v. Gibson,

355 U.S. 41, 47 (1957)). While detailed factual allegations are

not necessary, a plaintiff must plead enough facts “to raise a

right to relief above the speculative level.” Id.

When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

5 matters about which the Court may take judicial notice.”

Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).

The Court must construe the complaint liberally in plaintiffs’

favor and grant plaintiff the benefit of all reasonable

inferences deriving from the complaint. Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court need not

accept inferences that are “unsupported by the facts set out in

the complaint.” Id. “Nor must the [C]ourt accept legal

conclusions cast in the form of factual allegations.” Id.

“[O]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009).

IV. Analysis

A. Constitutional Interpretation

“When interpreting a constitutional provision, [the Court]

must look to the natural meaning of the text as it would have

been understood at the time of the ratification of the

Constitution.” Canning v. N.L.R.B., 705 F.3d 490, 500 (D.C. Cir.

2013) (citing District of Columbia v. Heller, 554 U.S. 570

(2008)). “In interpreting the text [the Court is] guided by the

principle that ‘[t]he Constitution was written to be understood

by the voters; its words and phrases were used in their normal

and ordinary as distinguished from technical meaning.’” Heller,

554 U.S. at 576 (quoting United States v. Sprague, 282 U.S. 716,

6 731 (1931)). “Normal meaning may of course include an idiomatic

meaning, but it excludes secret or technical meanings that would

not have been known to ordinary citizens in the founding

generation.” Id. at 576-77. In determining the normal and

ordinary meaning, the Court is to consider founding-era

dictionaries and other contemporaneous sources. See, e.g.,

N.L.R.B. v. Canning, 573 U.S. 513, 527 (2014); Heller, 554 U.S.

at 581-86. When the text is ambiguous, the Court is to consider

the purpose of the clause and the historical interpretations and

applications of the clause. Canning, 573 U.S. at 528-29; see

also Heller, 554 U.S. at 592 (“This meaning is strongly

confirmed by the historical background of the [provision].”).

The Court is also to “treat[] [government] practice as an

important interpretive factor even when the nature or longevity

of that practice is subject to dispute, and even when that

practice began after the founding era.” Canning, 573 U.S. at

525, 530-32 (considering opinions of the Office of Legal Counsel

(“OLC”) and the Comptroller General in determining the meaning

of the Recess Appointments Clause).

7 B. “Emolument” Is Broadly Defined as Any Profit, Gain, or Advantage 3

The Foreign Emoluments Clause provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.

U.S. Const. art. I, § 9, cl. 8.

1. The Ordinary Meaning, Text, Structure, Adoption, and Historical Interpretation of the Clause; Constitutional Purpose; and Consistent Executive Branch Practice Support a Broad Interpretation of “Emolument”

a. Ordinary Meaning of “Emolument”

The parties dispute whether the profits that the

President’s business interests earn from foreign governments are

“Emoluments” covered by the Clause. The President contends that

the Clause “is not a blanket prohibition on commercial

transactions with foreign governments by businesses in which the

3 The parties do not dispute that the Clause applies to the President. See generally Mot. to Dismiss, ECF No. 15-1; Pls.’ Opp’n, ECF No. 17; Def.’s Reply (“Reply”), ECF No. 28. The Court therefore declines to reach the question despite the argument to the contrary of one amicus brief and based on Judge Peter J. Messitte’s persuasive analysis of that argument and conclusion that the Clause does indeed apply to the President in the only other judicial opinion construing the Clause. See District of Columbia v. Trump, 315 F. Supp. 3d 875, 882-87 (D. Md. 2018) (“Trump”); see also Br. for Scholar Seth Barrett Tillman and Judicial Education Project as Amici Curiae in Supp. of the Def., ECF No. 16-1.

8 official has a financial interest,” but rather “applies only to

the receipt of compensation for services rendered by an official

in an official capacity or in an employment (or equivalent)

relationship with a foreign government, and to the receipt of

honor and gifts by an office-holder from a foreign government.”

Mot. to Dismiss, ECF No. 15-1 at 33-34. In support of his

position, the President explains that at the time of the

Nation’s founding, an “‘[E]molument’ was a common characteristic

of a federal office . . . comprehensively describ[ing] ‘every

species of compensation or pecuniary profit derived from a

discharge of the duties of the office.’” Id. at 34 (alteration

in original) (first citing United States v. Hartwell, 73 U.S.

385, 393 (1867); and then quoting Hoyt v. United States, 51 U.S.

109, 135 (1850). 4 According to the President, this was because

most federal officials did not receive salaries as is the case

today, but rather, were compensated by fees in exchange for

their services. Id. Therefore, he argues, this “common usage” of

the word at the time of the founding compels interpreting the

term to mean “profit arising from an office or employ.” Id. at

4 The President’s added emphasis on the phrase and reliance on this case are misleading given that the Court was not construing the meaning of the term “Emolument” generally, but rather a statutory provision concerning “the annual [E]moluments of any [customs] collector.” Hoyt, 51 U.S. at 135. Accordingly, the Emolument would necessarily derive from the discharge of the duties of the office. 9 35 (quoting James Barclay, A Complete & Universal English

Dictionary on a New Plan (1774)(“Barclay’s Dictionary”)). 5 To

illustrate, the President provides two examples of what would

constitute Emoluments under his definition: (1) “a federal

official would receive an Emolument if he or she was paid by a

foreign government to take certain official actions”; and

(2) “an Emolument would [] be received if an official became an

employee or entered an employment-like relationship with the

foreign government, such as if a federal government lawyer

provided legal advice and services to a paying foreign power.”

Id. According to the President, “[t]his interpretation is

consistent with the nature of the other prohibited categories in

the Foreign Emoluments Clause: present, office, and title, which

are all things personally conferred or bestowed on a U.S.

official holding an ‘Office of Profit or Trust.’” Id.

Plaintiffs rely on contemporaneous dictionaries, general-

purpose writings, contemporaneous state constitutions, and legal

decisions to support their argument that at the time the

Constitution was written, “‘[E]molument’ was a commonly used

5 Plaintiffs point out that Barclay’s dictionary defines “employ” not as “employment” but as “a person’s trade, business” and “a public office” and therefore this source supports defining an Emolument to include “profit arising from . . . a person’s trade, business.” Pls.’ Opp’n, ECF No. 17 at 42. Plaintiffs contend that this definition does not therefore support the President’s position. Id. at 42-43. 10 term that often referred to profit or gain in general.” Pls.’

Opp’n, ECF No. 17 at 39 (citing The Oxford English Dictionary

(2d ed. 1989) (referring to eighteenth century texts); Samuel

Johnson, A Dictionary of the English Language (1755); John

Mikhail, The Definition of “Emolument” in English Language &

Legal Dictionaries, 15-23-1806, at 8 (July 9, 2017) (working

paper),

https://papers.ssrn.com/so13/papers.cfm?abstract_id=2995693

(explaining that [E]molument was defined as “‘profit,’

‘advantage,’ ‘gain,’ or ‘benefit’ . . . in every known English

language dictionary” published in the seventeenth and eighteenth

centuries, that this was the exclusive definition provided in

over 92% of these dictionaries, and that the President’s

preferred definition appears in less than 8% of these

dictionaries, but that the broader definition also appears in

these latter dictionaries)). Plaintiffs also emphasize, again

relying on contemporaneous documents, that the term “was

frequently used to mean the profits accruing from private

financial transactions.” Id. at 40.

Plaintiffs maintain that interpreting the term to

“requir[e] an employment-like relationship[] is based on a

flawed reading of Founding-era dictionaries . . . [and]

requiring the provision of specific services in an official

capacity” lacks legal support. Id. at 41. Moreover, they argue

11 that even if the Court were to adopt the narrow definition that

appears in the Oxford English Dictionary–“[p]rofit or gain

arising from station, office, or employment; dues, reward;

remuneration, salary”–“the gain arising from President Trump’s

status as the head of a worldwide business empire” falls within

this definition. Id. Furthermore, according to plaintiffs,

“[t]he narrower definition the President cites also embraces

profit or gain ‘arising from [his] office,’ as when foreign

governments seek his favor by granting him lucrative trademarks

or selecting his hotels” because these “benefits ‘arise from’

the office he holds, because (the Plaintiffs allege) they are

being given to him because he is the President.” Id. (citing Am.

Compl., ECF No. 14 ¶¶ 48, 54).

The President contends that the number of sources citing

the two competing definitions is not relevant because the

meaning of the term in the Clause depends on the constitutional

context, the history of the Clause, and founding-era practices.

Reply, ECF No. 28 at 22. The President also asserts that

plaintiffs’ reliance on Professor Mikhail’s article is misplaced

because another law review article has criticized it for making

inaccurate assumptions. Id. at 22-23. The President argues that

Professor Mikhail’s article and the sources it references

actually support his position because they “demonstrate that the

President’s definition is closely related to the etymology of

12 [E]molument, which is profit derived from labor, or more

specifically, from grinding corn.” Id. at 23. The President also

notes that the Oxford English Dictionary lists his definition of

“emolument” first, and before plaintiffs’ broader definition,

indicating that the President’s definition predates that of the

plaintiffs. Id. at 24.

Amici Legal Historians soundly reject the President’s

“narrow definition of ‘Emolument’ [as] inaccurate,

unrepresentative, and misleading”:

Little or no evidence indicates that the two obscure sources—Barclay (1774) and Trusler (1766)—on which [the President] relies for [his] “office- and employment-specific” definition of “[E]molument” were owned, possessed, or used by the founders, let alone had any impact on them, or on those who debated and ratified the Constitution. For example, neither of these sources is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly define “[E]molument” in the broad manner favoring the plaintiffs: “profit,” “advantage,” or “benefit.”

Second, a careful review of English language dictionaries from 1604 to 1806 shows that every definition of “[E]molument” published during this period relies on one or more of the elements of the broad definition [the

13 President] rejects in [his] brief: “profit,” “advantage,” “gain,” or “benefit.” . . . Finally, Trusler’s volume is not a standard dictionary, but rather a thesaurus, which presumes that “gain,” “profit,” and “[E]molument” are synonyms; moreover, its explanation of “[E]molument” was copied directly from a French thesaurus, hence it is not even reliably grounded in English usage. The impression [the President] creates in [his] brief by contrasting four historical definitions of “[E]molument”—two broad and two narrow—is, therefore, highly misleading.

Br. of Amici Curiae by Certain Legal Historians on Behalf of

Pls. (“Br. of Legal Historians”), ECF No. 46 at 12-13 (footnotes

omitted).

The President does not dispute that the broader definition

existed at the time the Constitution was ratified, Mot. to

Dismiss, ECF No. 15-1 at 37, and plaintiffs acknowledge that a

narrower definition existed at the time, Pls.’ Opp’n, ECF No. 17

at 41. Plaintiffs’ main contention is that because the evidence

demonstrates that the broader definition was more pervasive, it

was what was intended in the Clause. The President responds that

the narrower definition is the “better one” to use given the

context and history of the Clause.

The Court is persuaded that the weight of the evidence in

“founding-era dictionaries and other contemporaneous sources”

supports the broad meaning of the term advocated by plaintiffs

and supported by the Legal Historians. Trump, 315 F. Supp. 3d at

882 (citing Canning, 573 U.S. at 527). The fact that there is

14 evidence from founding-era sources that both the broad

definition advocated by plaintiffs, as well as a narrower

definition associating “Emolument” with employment, existed at

the ratification of the Constitution, however, suggests some

ambiguity in the term. Accordingly, the Court considers the

surrounding text, structure, adoption, historical

interpretation, and purpose of the Clause, as well as Executive

Branch practice to determine the meaning of “Emolument.” See

Canning, 573 U.S. at 528-29 (when the constitutional text is

ambiguous, the court is to consider the purpose of the clause

and the historical interpretations and applications of the

clause).

b. Text and Structure of the Clause, and Other Uses in the Constitution

The President acknowledges that the broader definition of

“Emolument” advocated by plaintiffs “resembles a broader

definition that also existed at the time of the founding” but

points to the legal interpretive principle that a word with

different meanings should be interpreted by reference to the

context. Mot. to Dismiss, ECF No. 15-1 at 37-38. Accordingly,

“when read harmoniously with the rest of the Clause, [Emolument]

has the natural meaning of the narrower definition of profit

arising from an official’s services rendered pursuant to an

office or employ.” Id. at 38. The President also asserts that

15 plaintiffs’ broad definition of “Emolument” would subsume the

term “present” in the Clause and render it redundant, noting

that plaintiffs use the terms “Emolument” and “present”

interchangeably. Id. at 38-39 (citing Holmes v. Jennison, 39

U.S. 540, 570-71 (1840) (“In expounding the Constitution of the

United States, every word must have its due force, and

appropriate meaning; for it is evident from the whole

instrument, that no word was unnecessarily used, or needlessly

added.”)).

The President contends that the other two instances in

which “Emolument” is used in the Constitution provide further

support for his narrow definition because “[e]ach is associated

with an office and refers to compensation for services rendered

in the capacity as the holder of that office.” Id. at 36 (citing

U.S. Const. art. II, § 1, cl. 7 (“The President, shall, at

stated Times, receive for his services, a Compensation . . . and

he shall not receive within that Period any other Emolument from

the United States, or any of them.”); U.S. Const. art. I, § 6,

cl. 2 (“No Senator or Representative shall, during the Time for

which he was elected, be appointed to any civil Office under the

Authority of the United States, which shall have been created,

or the Emoluments whereof shall have been encreased during such

time. . . .”)).

16 Plaintiffs argue that even if the President’s narrow

definition of “Emolument” existed, the Clause does not use the

word in such a narrow sense, because to do so would render the

phrase “of any kind whatever” surplusage. Pls.’ Opp’n, ECF No.

17 at 43. Plaintiffs assert that the purpose of this phrase “is

to rule out interpretations [of ‘Emoluments’] that would allow

some ‘kinds’ of emolument to be accepted.” Id. at 44. Plaintiffs

point to the Incompatibility Clause to support their argument

that the reach of the Clause is broad. Id. The Incompatibility

Clause provides that no member of Congress “shall, during the

Time for which he was elected, be appointed to any civil Office

. . . the Emoluments whereof shall have been encreased during

such time.” U.S. Const. art. I, § 6, cl.2. Plaintiffs point out

that this Clause applies only to Emoluments bestowed by the

federal government upon civil office holders, whereas the

Foreign Emoluments Clause contains no such prohibition. Pls.’

Opp’n, ECF No. 17 at 44. Plaintiffs also argue that the reason

the Clause permits exceptions—with the consent of Congress—is

precisely because its reach is so broad. Id.

In response to plaintiffs’ argument that the phrase “of any

kind whatever” compels their preferred definition, the President

argues that this phrase “emphasizes the Clause’s reach—every

kind of [E]molument, present, office, or title—and is not a

basis to choose which definition” was intended in the Clause.

17 Reply, ECF No. 28 at 25. In response to plaintiffs’ argument

that the President’s definition renders “of any kind whatever”

to be surplusage because of the word “any,” the President posits

that there is no redundancy in his interpretation because “[t]he

more plausible role of this first use of the word ‘any’ in the

Clause is numeric—that no prohibited Emoluments may be received

by a covered official without the consent of Congress, whereas

the phrase ‘of any kind whatever’ operates to ensure that every

type of the identified compensation is also prohibited.” Id. at

26.

Finally, the President disputes that use of the term

“Emoluments” in the Incompatibility Clause bolsters plaintiffs’

interpretation of the term because “the fact that a reference to

an office is not included in the Foreign Emoluments Clause is

simply due to the fact that the Foreign Emoluments Clause has a

broader reach—it regulates not only compensation or benefits

arising from holding federal office but also any employment-like

relationship between a foreign government and a covered

official.” Id. The President notes that the term “Emolument” is

used only one other time in the Constitution—in the Domestic

Emoluments Clause which provides that “[t]he President shall, at

stated Times, receive for his Services, a Compensation . . . and

he shall not receive within that Period any other Emolument from

the United States, or any of them.” Id. at 27 (quoting U.S.

18 Const. art. II, § 1, cl.7). The President concludes that it

would not make sense for the term to have different meanings in

the Constitution and that “all three clauses in which the term

appears are tied to holding office and regulat[ing] the conduct

of office-holders.” Id.

The Court is persuaded that the text and structure of the

Clause, together with the other uses of the term in the

Constitution, support plaintiffs’ definition of “Emolument”

rather than that of the President. The Clause bans, without

congressional approval, “any present, Emolument, Office, or

Title, of any kind whatever, from any King, Prince, or foreign

State.” U.S Const. art. I, § 9, cl. 8 (emphasis added). The

President’s argument that the phrase “of any kind whatever”

should be understood to modify “Emoluments” defined narrowly

rather than being “a basis to choose which definition” was meant

in the Clause, Reply, ECF No. 28 at 25, is unpersuasive and

inconsistent with his own argument. The President himself argues

that a word with different meanings should be interpreted by

reference to the context. Mot. to Dismiss, ECF No. 15-1 at 38.

“[T]he meaning of a term may be enlarged or restrained by

reference to the object of the whole clause in which it is

used.” Virginia v. Tennessee, 148 U.S. 503, 519 (1893). Here, it

is uncontested that the broad meaning and a narrower meaning

tied to employment existed at the time the Constitution was

19 ratified, and this expansive modifier, which as plaintiffs point

out is used nowhere else in the Constitution, logically serves

to ensure that the acceptance of any foreign Emolument, however

defined, is prohibited without congressional consent. See also

Trump, 315 F. Supp. 3d at 888 (“If there were any doubt as to

the limits of the Foreign Clause, the Framers used the word

‘any’ twice, ensuring a broad and expansive reach.”).

The President’s argument that the use of “Emolument” in the

Incompatibility Clause and the Domestic Emoluments Clause

supports his narrow definition is similarly unconvincing. In the

former, “Emolument” specifically refers to an office, indicating

that when the Founders intended for an Emolument to refer to an

official’s salary or payment associated with their office, they

said so explicitly. See U.S. Const. art. I, § 6, cl. 2. In the

latter, the Emoluments that are prohibited are those that would

be received “from the United States or any of them.” U.S. Const.

art. II, § 1, cl. 7. Thus, rather than “Emolument” having

different meanings the three times it is used in the

Constitution, more logically, the broader meaning is modified in

each Clause according to the purpose of the Clause. See

Virginia, 148 U.S. at 519; see also Trump, 315 F. Supp. 3d at

888 (“If ‘[E]molument’ were always to be read as a synonym for

salary or payment for official services rendered, th[e] modifier

in the Incompatibility Clause would have been unnecessary.”).

20 Also unconvincing is the President’s argument that adopting

plaintiffs’ definition of “Emolument” to mean “profit,” “gain,”

or “advantage” would render the term “present” redundant. The

President points out that a “present” was defined as it is

today: “[s]omething bestowed upon another without price or

exchange; the act of giving.” Mot. to Dismiss, ECF No. 15-1 at

39 (quoting Barclay’s Dictionary). As Judge Messitte observed,

defining an “Emolument” as a “profit,” “gain,” or “advantage”

“ensure[s] that the Clause covered all types of financial

transactions—solicited or unsolicited, reciprocated or

unreciprocated, official or private”—even if “Emolument” is

sometimes used synonymously with “present.” Trump, 315 F. Supp.

3d at 889.

Furthermore, Judge Messitte points out that the President’s

narrow definition “would seem to create its own concerning

redundancies within the Constitution.” Id. As the President

explained, a practical example of his definition would be when

“a federal official would receive an [E]molument if he or she

was paid by a foreign government to take certain official

actions.” Mot. to Dismiss, ECF No. 15-1 at 35. Judge Messitte

persuasively states that this example

is tantamount to defining the transaction as nothing less than one of federal bribery, a crime which prohibits a federal public official from, directly or indirectly, receiving or accepting “anything of value” in

21 return for “being influenced in the performance of any official act.” 18 U.S.C. § 201(b)(2). Given that Article II, Section 4 of the Constitution already addresses the crime of bribery, making it an impeachable offense, there would have been little need to include two additional and distinct Emoluments Clauses prohibiting the acceptance of money from foreign or state governments for official services rendered. Moreover, it seems highly unlikely that the Framers would have intended bribery to be both an impeachable offense and, at the same time, an activity Congress could consent to when a foreign government donor is involved. The President makes no attempt to come to terms with this anomaly.

Trump, 315 F. Supp. 3d at 889 (footnote omitted). Finally, there

is no question that the receipt of Emoluments is tied to the

office of President and regulating his conduct as President, but

that does not compel defining “Emolument” as narrowly as the

President advocates.

c. Adoption and Historical Interpretation of the Clause

The President argues that “[t]he adoption and historical

interpretation of the . . . Clause are consistent with the

office- and employment-specific construction of the term

‘Emolument.’” Mot. to Dismiss, ECF No. 15-1 at 40. In support,

the President observes that “the history of the Clause’s

adoption [is] devoid of any concern about an official’s private

commercial businesses.” Id. at 42. Plaintiffs describe this as

a “dog that didn’t bark” argument, stating that even if this is

true, “it [] tells us nothing. Discussion of the Clause was not

22 extensive because the Clause was not controversial.” Pls.’

Opp’n, ECF No. 17 at 44. Furthermore, according to plaintiffs,

“the agrarian economy of the eighteenth century, the

comparatively limited role of government, and the primitive

travel technology available would have made private commerce

with foreign states an unlikely conduit for foreign influence

at the time.” Id. at 44-45.

Citing examples of early Presidents exporting agricultural

products to foreign countries, the President argues that

historical evidence supports his position that the Clause was

not intended “to reach commercial transactions that a President

(or other federal official) may engage in as an ordinary

citizen through his business enterprises.” Mot. to Dismiss, ECF

No. 15-1 at 43-44. Plaintiffs point out that none of the

examples are of commercial transactions with a foreign

government, thus the President can “claim only that they might

have conducted such business.” Pls.’ Opp’n, ECF No. 17 at 45.

The President responds that while the records are limited and

inconclusive, because “there is no question that private

business pursuits by federal officials, including by early

Presidents, were common at the time of the Nation’s founding[,]

[i]t is reasonable to infer that at least some of their

transactions may have been with foreign or domestic government

actors, including foreign state-chartered trading companies.”

23 Reply, ECF No. 28 at 29. The President relies heavily on one

historical incident—President George Washington’s purchase of

land from the federal government in the then-Territory of

Columbia—to argue that if plaintiffs’ definition of

“Emoluments” applies, President Washington would have violated

the Domestic Emoluments Clause, pointing out that the

precedents President Washington set are considered

authoritative. Mot. to Dismiss, ECF No. 15-1 at 45-46.

Finally, the President argues that a proposed

constitutional amendment that would have applied the

prohibitions in the Clause to all private citizens undermines

the broad definition, asserting that it is “implausible that

this amendment was intended or understood as providing for the

revocation of the citizenship of anyone engaging in commerce

with foreign governments or their instrumentalities . . . [and]

. . . inconceivable that Congress and nearly three-fourths of

the States intended to strip the citizenship of, for example,

those hotel owners whose customers included visiting foreign

diplomats using government funds.” Id. at 47. Amici Legal

Historians point out, however, that “[i]n 1810, Americans

conceived precisely of this problem” given the historical

context. Br. of Legal Historians, ECF No. 32 at 33. Plaintiffs

also point out that the President’s argument is self-defeating

because, for example, “a household servant temporarily hired by

24 a visiting foreign diplomat . . . would be ‘in an employment-

like relationship’ with the diplomat.” Pls.’ Opp’n, ECF No. 17

at 45 (citing Mot. to Dismiss, ECF No. 15-1 at 22).

The Court is persuaded that the adoption of the Clause and its

historical interpretation support plaintiffs’ definition rather

than that of the President. It is well-established that there

was little discussion of the Clause by the Framers because it

was noncontroversial. See Br. of Legal Historians, ECF No. 46

at 24. Furthermore, the Court declines to make the inference

advocated by the President—that it is reasonable to infer that

some of the early Presidents’ private business pursuits would

have been with foreign state-chartered trading companies—

because the President has provided no evidence to justify

making such an inference. See generally Mot. to Dismiss, ECF

No. 15-1; Reply, ECF No. 28. On a motion to dismiss, it is the

plaintiff, not the defendant, who receives the benefit of all

reasonable inferences deriving from the complaint. See Kowal,

16 F.3d at 1276. Similarly, the Court declines to infer that

the President’s narrow definition should be adopted based on

President Washington’s purchase of public land, potentially in

violation of the Domestic Emoluments Clause, given this was a

single incident as compared with the great weight of the

historical interpretation of the Clause. See also Trump, 315 F.

Supp. 3d at 903-904 (noting that the facts regarding this

25 transaction are “seriously incomplete”). Finally, the Court is

not persuaded that the President’s reliance on a proposed

constitutional amendment that never became law, and for which

he is unable to cite any floor debates that would illuminate

the intent of the amendment, should be accorded any weight in

determining the meaning of “Emolument.”

d. Purpose of the Clause

The President pays little attention to interpreting the

meaning of “Emolument” by reference to the purpose of the

Clause, briefly acknowledging that “[a]lthough the Clause was

intended to combat corruption and foreign influence, the text,

original understanding, and historical practice provide no

support for Plaintiffs’ inferential leap from the Clause’s

purpose to a blanket prohibition on receiving ‘any monetary or

nonmonetary benefit’ regardless of context.” Mot. to Dismiss,

ECF No. 15-1 at 53. The President also notes that the Framers

“gave no indication that they intended to require officeholders

to divest their private commercial businesses in order to assume

federal office.” Id. The President argues that plaintiffs’

definition would result in “absurd consequences” because, among

other things, royalties from foreign book sales, United States

Treasury bonds, and stock holdings could be considered

prohibited foreign Emoluments. Id. at 53-56.

26 Plaintiffs argue that even if the term is considered

ambiguous, any ambiguity should be resolved against the

President because his proposed definition “would defeat the

Clause’s purpose—throwing open the doors to the corruption of

any officeholder wealthy enough to own businesses and reducing

the Clause to a mere bribery law, not a prophylactic safeguard

against the possibility of corruption.” Pls.’ Opp’n, ECF No. 17

at 45. Plaintiffs cite contemporaneous documents to support

their argument that the purpose of the Clause was “to exclude

corruption and foreign influence,” id. at 46 (quoting 3 Elliot’s

Debates 465 (Randolph)), prompted by the need to guard against

“the influence which foreign powers may attempt to exercise in

our affairs,” id. (quoting Tench Coxe, An Examination of the

Constitution for the United States of America, No. 4 (Oct. 21,

1787), and to “lock up every door to foreign influence,” id.

(quoting 5 Annals of Cong. 1584 (1978) (Claiborne)). Plaintiffs

also cite contemporary OLC memoranda which consistently give the

Clause a broad scope. Id. at 46-47.

Amici Former Government Ethics Officers, former government

officials tasked with interpreting the Clause, dispute that

“absurd consequences” would result from adopting plaintiffs’

broad definition of “Emolument” because “the government applies

a totality-of-the-circumstances approach to Emoluments Clause

questions, with a bias in favor of breadth, and a keen eye to

27 the anti-corruption purpose of the clause[].” Br. of Former

Gov’t Ethics Officers as Amici Curiae Supporting Pls.’ Opp’n to

Def.’s Mot. to Dismiss (“Br. of Former Gov’t Ethics Officers”),

ECF No. 42 at 10. So, for example, amici dispute that royalties

from foreign book sales would be subject to the Clause unless “a

foreign government attempts to influence a President by

purchasing copies of his book, or if a competent authority finds

a real potential for such influence.” Id. at 15. As to

restricting the ability to hold Treasury bonds or stock

holdings, amici state that “these payments are unlikely to raise

concerns because it is highly doubtful that holding publicly

traded securities would create the potential for others to

exercise undue influence over the holder.” Id. at 14.

In view of the overwhelming evidence pointing to over two

hundred years of understanding the scope of the Clause to be

broad to achieve its purpose of guarding against even the

possibility of “corruption and foreign influence,” 3 Records of

the Federal Convention of 1787, at 327 (Max Farrand ed., 1966),

the Court is persuaded that adopting plaintiffs’ broad

definition of “Emolument” ensures that the Clause fulfills this

purpose. See also Canning, 573 U.S. at 528 (“[W]e believe the

[Recess Appointments] Clause’s purpose demands the broader

interpretation” in light of the ambiguity of the constitutional

text.). In view of the arguments of amici to the contrary, the

28 Court is also not persuaded that “absurd consequences” would

result from this broad definition in view of the consistent

Executive Branch practice of applying a totality-of-the-

circumstances approach to applying the Clause. For the same

reason, it is clear that adopting the plaintiffs’ definition

would not result in a “blanket prohibition” that disregards

context.

e. Executive Branch Practice

As the Court explained in Blumenthal I, “[h]istorically,

Presidents have complied with the Clause by either seeking and

obtaining congressional consent prior to accepting foreign

presents or Emoluments, or by requesting an opinion from the

Executive or Legislative Branch’s advisory office as to whether

the Clause applies.” Blumenthal I, 335 F. Supp. 3d at 53 (citing

Br. of Federal Jurisdiction and Constitutional Law Scholars as

Amicus Curiae in Supp. of Pls., ECF No. 44 at 24 (“Br. of

Federal Jurisdiction and Constitutional Law Scholars”)). “Modern

Presidents, except for President Trump, have sought advice from

OLC prior to accepting potentially covered Emoluments.” Id. at

53-54 (citing Br. of Federal Jurisdiction and Constitutional Law

Scholars, ECF No. 44 at 25). The Comptroller General of the

United States is also charged with interpreting the application

of the Clause. Mot. to Dismiss, ECF No. 15-1 at 49.

29 The President points to interpretations from these

authorities as support for his preferred definition of

“Emolument” because “[i]n every published OLC or Comptroller

General opinion in which proposed conduct was determined to

involve prohibited [E]moluments, the determination involved an

employment relationship (or a relationship akin to an employment

relationship) with the foreign government.” Id. Plaintiffs

respond that the reason for this is simple: “OLC and the

Comptroller General render decisions in response to requests

from federal officers. Most such officers are not real estate

magnates, but rather people who earn money by providing their

individual labor or expertise.” Pls.’ Opp’n, ECF No. 17 at 49.

Amici Former Government Ethics Officers explain that the

OLC, Comptroller General, and Department of Defense apply the

following principles when determining whether the Clause applies

to the situation at issue. Br. of Former Gov’t Ethics Officers,

ECF No. 42 at 7-8. First, because the “‘expansive language and

underlying purpose . . . strongly suggest that [the Clause] be

given broad scope’ . . . analyses have therefore usually started

from the presumption that the clause applies . . . [because] . .

. ‘[t]hose who hold offices under the United States must give

the government their unclouded judgment and their uncompromised

loyalty.’” Id. at 8-9 (internal citations and quotations

omitted). Second, and as explained above, the government uses a

30 “totality-of-the-circumstances approach” in determining whether

the Clause applies to the situation and “has never come close to

adopting anything like the rigid, narrow rule advanced by the

[President].” Id. at 10-11. As an example, “the government has

reached varying conclusions as to whether particular payments

come from a ‘foreign state’ depending on how much control

foreign governments exercise over those payments.” Id. at 10.

Amici also point out that “the government has never determined

that the clause permits a public officeholder to maintain an

interest in a business that stands to benefit by virtue of that

person holding public office.” Id. at 11. Amici explain that

officials pay “close attention to whether the arrangement

creates even a potential for improper foreign government

influence over a person in an office of public trust. When such

a potential exists—even if the probability is quite low—the

government has found that such arrangements violate the Foreign

Emoluments Clause.” Id.

Given that there is only one other judicial opinion

interpreting the Clause, the Court looks to OLC and Comptroller

General opinions as sources of authority for how “Emolument” is

defined and how the Clause is interpreted and applied. Canning,

573 U.S. at 525 (noting that “the longstanding ‘practice of the

government’ can inform our determination of ‘what the law is’”

and that “this Court has treated practice as an important

31 interpretive factor even when the nature or longevity of that

practice is subject to dispute, and even when that practice

began after the founding era”) (citations omitted). OLC opinions

have consistently cited the broad purpose of the Clause and

broad understanding of “Emolument” advocated by plaintiffs to

guard against even the potential for improper foreign government

influence. E.g., Application of Emoluments Clause to Part-Time

Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C.

96, 98 (1986) (The Clause’s “expansive language and underlying

purpose . . . strongly suggest that it be given broad scope.”);

Applicability of the Emoluments Clause to Non-Government Members

of ACUS, 17 Op. O.L.C. 114, 121 (1993) (“The language of the

Emoluments Clause is both sweeping and unqualified.”);

Memorandum from Norbert A. Schlei, Assistant Att’y Gen., Office

of Legal Counsel, to Andrew F. Oehmann, Office of the Att’y

Gen., Re: Invitation by Italian Government to Officials of the

Immigration and Naturalization Service & a Member of the White

House Staff 2 (Oct. 16, 1962),

https://www.justice.gov/olc/page/file/935741/download (noting

“the sweeping nature of the constitutional prohibition and the

fact that in the past it has been strictly construed, being

directed against every possible kind of influence by foreign

governments over officers of the United States”). Accordingly,

adopting the President’s narrow definition of “Emolument” would

32 be entirely inconsistent with Executive Branch practice defining

“Emolument” and determining whether the Clause applies.

Significantly, the President has not cited an OLC or

Comptroller General opinion that supports his position. See

generally Mot. to Dismiss, ECF No. 15-1; Reply, ECF No. 28. To

the contrary, he can only assert that his position “is not

inconsistent with the conclusions of any published OLC or

Comptroller General opinions.” Def.’s Suppl. Br. in Supp. of his

Mot. to Dismiss and in Resp. to the Brs. of Amici Curiae, ECF

No. 51 at 23-24. However, one opinion directly contradicts his

narrow reading of the Clause, and another undermines his narrow

definition of “Emolument.”

In 1993, OLC issued an opinion stating that non-

governmental lawyers who were members of the Administrative

Conference of the United States (“ACUS”) could not receive

partnership distributions from their respective firms where the

distribution would include fees from foreign government clients

even though the lawyers “did not personally represent a foreign

government, and indeed had no personal contact with that client

of the firm.” Applicability of the Emoluments Clause to Non-

Government Members of ACUS, 17 Op. O.L.C. at 119. OLC reasoned

that:

Because the amount the Conference member would receive from the partnership’s profits would be a function of the amount paid to the firm

33 by the foreign government, the partnership would in effect be a conduit for that government. Thus, some portion of the member’s income could fairly be attributed to a foreign government. We believe that acceptance of that portion of the member’s partnership share would constitute a prohibited [E]molument.

Id. 6 Judge Messitte noted that “[t]his language directly

contradicts the President’s suggestion that there can be no

violation of the Foreign [Emoluments] Clause if the federal

official is receiving benefits in a private capacity.” Trump,

315 F. Supp. 3d at 902. And as amici observe, this Opinion

“devastates the [President’s] primary argument for a narrow

reading of the clause because it shows that even an attenuated

economic interest in ordinary commercial transactions that

generate value for both sides can violate the [Foreign]

Emoluments Clause if that business nevertheless creates the

potential for undue influence over public officials.” Br. of

Former Gov’t Ethics Officers, ECF No. 42 at 21. The Court

agrees.

Nor does the Comptroller General opinion concluding that

President Ronald Reagan’s receipt of California pension benefits

did not violate the Domestic Emoluments Clause provide support

6 OLC later determined that non-governmental members of ACUS were not subject to the Clause, but did not its modify determination that the distribution was an Emolument. Applicability of the Emoluments Clause to Nongovernmental Members of ACUS, 2010 WL 2516024 (June 3, 2010). 34 for the President’s definition of “Emolument.” The Comptroller

General determined that “the term ‘[E]molument’ cannot be

considered to extend to benefits that have been earned or to

which entitlement arose before his occupancy of that office, and

that clearly have no connection, either direct or indirect, with

the Presidency . . . [because they]. . . cannot be construed as

being in any manner received in consequence of his possession of

the Presidency.” Hon. George J. Mitchell, U.S. Senate, B-207467,

1983 WL 27823, at *3 (Comp. Gen. Jan. 18, 1983). Those

retirement benefits are entirely distinguishable from the

situation here, where it is alleged that, among other things,

foreign diplomats stay at the President’s Washington D.C. hotel

“to curry favor with [him] because of his position as President

of the United States,” Am. Compl., ECF No. 14 ¶ 54; and that

“his businesses receive funds and make a profit from payments by

foreign governments, and that they will continue to do so while

he is President,” id. ¶ 37; see also Trump, 315 F. Supp. 3d at

903 (observing that “profits received from foreign or domestic

governments that patronize the Trump International Hotel for the

express purpose of potentially currying favor with a sitting

President present a stark contrast to the fully vested

retirement benefits that then-Governor Reagan earned from the

State of California which the State of California was not free

to withdraw.”).

35 Finally, the President finds support for his preferred

definition in statutory provisions that exempt certain

employment relationships between government officials and

foreign officials from the scope of the Clause, asserting that

“[h]ad Congress understood the Clause to reach more broadly than

compensation arising from personal services rendered to a

foreign government, it surely would have exempted a wider range

of activities.” Mot. to Dismiss, ECF no. 15-1 at 52. The Court

is not persuaded that the President’s reliance on statutory

provisions that were never enacted should be accorded any weight

in determining the scope of the Clause.

Consistent Executive Branch practice, which “has never come

close to adopting anything like the rigid, narrow rule advanced

by the [President],” Br. of Former Gov’t Ethics Officers, ECF

No. 42 at 10-11, clearly supports plaintiffs’ broad definition

of “Emolument” rather than that of the President. Accordingly,

“Emolument” is broadly defined as any profit, gain, or

advantage. See also Trump, 315 F. Supp. 3d at 905 (finding that

the term Emolument “extends to any profit, gain, or advantage,

of more than de minimis value, received by [the President],

directly or indirectly, from foreign . . . governments”).

36 C. Plaintiffs Have Stated a Claim Under the Foreign Emoluments Clause

With “Emolument” defined broadly as any profit, gain, or

advantage, it is clear that the Amended Complaint states a

plausible claim against the President for violations of the

Clause. Plaintiffs have alleged that the President has accepted

a variety of Emoluments from foreign governments—intellectual

property rights, payments for hotel rooms and events, payments

derived from real estate holdings, licensing fees for “The

Apprentice,” and regulatory benefits—without seeking and

obtaining the consent of Congress. Am. Compl., ECF No. 14, ¶¶

44-67. Accepting the allegations in the Amended Complaint as

true, which the Court must at this juncture, plaintiffs’

allegations state a plausible claim for relief, and survive the

President’s motion to dismiss. Iqbal, 556 U.S. at 679.

D. Plaintiffs Have a Cause of Action to Seek Injunctive Relief and the Injunctive Relief Sought Is Constitutional

1. Plaintiffs Have a Cause of Action to Seek Injunctive Relief

The President, analogizing the Foreign Emoluments Clause to

the Supremacy Clause, argues that the Clause “is not a source of

federal rights such that the Court may imply a cause of action

under the Clause.” Mot. to Dismiss, ECF No. 15-1 at 29. As he

must, however, the President acknowledges that equitable relief

is available “to enjoin unconstitutional actions by public

37 officials,” but emphasizes that such relief is only available in

“a proper case,” id. (citing Armstrong v. Exceptional Child

Ctr., Inc., 135 S. Ct. 1378, 1384 (2015)), as “an act of

equitable discretion by the district court,” id. (citing eBay,

Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The

President argues that this is not “a proper case” for the Court

to exercise its equitable discretion for three reasons. Id. at

30-32. First, “[p]laintiffs are not preemptively asserting a

defense to a potential enforcement action against them by the

Government, which is the paradigmatic situation where implied

equitable claims against the Government have been recognized.”

Id. at 30. “Second, equity ‘may not be used to create new

substantive rights’ . . . and the . . . Clause does not create

any personal or judicially enforceable rights.” Id. at 31. As

part of this point, the President argues that plaintiffs cannot

show that their injury falls within the zone of interests

protected by the Clause because only Congress as a whole, and

not its individual members, fall within the zone of interests

protected by the Clause. Id. Third, plaintiffs “can obtain

relief only by suing the President himself, which (if not

legally foreclosed) is at a minimum grounds for extreme

equitable restraint.” Id. at 32 (citation omitted). The

President concludes by reiterating his argument that plaintiffs’

remedy lies with Congress rather than the Courts. Id.

38 Plaintiffs respond that they have an implied cause of

action to seek injunctive relief based on long-standing Supreme

Court precedent ensuring the “‘ability to sue to enjoin

unconstitutional actions’ by government officials.” Pls.’ Opp’n,

ECF No. 17 at 50-51 (quoting Armstrong, 135 S. Ct. at 1385-86).

According to plaintiffs, an implied private right of action

exists “when a plaintiff is injured by a constitutional

violation, including a ‘separation of powers’ violation,” unless

there is a reason to treat the claim differently from any other

constitutional claim. Id. (citing Free Enter. Fund v.

P.C.A.O.B., 561 U.S. 477, 491 n.2 (2010)). Plaintiffs argue that

there is no reason to treat the claim here differently, and they

reject the President’s analogy to the Supremacy Clause. Id. at

51.

Plaintiffs reject the President’s contention that the

“zone-of-interests” test applies to constitutional claims in

light of Lexmark Int’l, Inc. v. Static Control Components, Inc.,

134 S. Ct. 1377, 1386 (2014), but state that even if it does,

they easily satisfy it. Pls.’ Opp’n, ECF No. 17 at 52.

Plaintiffs argue that “[t]he interest they seek to vindicate is

at the heart of the Clause, which employs separation of powers

to combat foreign corruption.” Id. Plaintiffs observe that the

President concedes that Congress as a whole would satisfy any

zone-of-interests test, but that he offers no reason why

39 individual Members of Congress have a different zone of

interests. Id.

The Court is not persuaded that it should find no implied

cause of action in the Foreign Emoluments Clause on the ground

that the Supremacy Clause does not create a cause of action. In

holding there is no implied cause of action in the Supremacy

Clause, the Supreme Court stated that it “does not create a

cause of action. It instructs courts what to do when state and

federal law clash . . .” Armstrong, 135 S. Ct. at 1383. That

“instruction” stands in sharp contrast to the Clause, which

prohibits the acceptance of any foreign Emoluments of any kind

whatever without the consent of Congress. Furthermore, the

President points to no authority holding that the Appointments

Clause, which arguably is analogous to the Foreign Emoluments

Clause, does not create an implied right of action. See

generally Mot. to Dismiss, ECF No. 15-1; Reply, ECF No. 28.

The Court is persuaded that this is a proper case in which

to exercise its equitable discretion to enjoin allegedly

unconstitutional action by the President. See Armstrong, 135 S.

Ct. at 1384 (“[W]e have long held that federal courts may in

some circumstances grant injunctive relief . . . with respect to

violations of federal law by federal officials.”) (citations

omitted). As plaintiffs point out, there is no reason for the

exercise of equitable discretion to be limited to defend a

40 potential enforcement action and the President has cited no

authority to the contrary. Pls.’ Opp’n, ECF No. 17 at 54.

Rather, “it is established practice for this Court to sustain

the jurisdiction of federal courts to issue injunctions to

protect rights safeguarded by the Constitution” unless there is

a reason not to do so. Free Enter. Fund, 561 U.S. at 491 n.2

(citation omitted); Nixon v. Fitzgerald, 457 U.S. 731, 753-54

(1982) (“It is settled law that the separation-of-powers

doctrine does not bar every exercise of jurisdiction over the

President of the United States.”). Here, accepting the

allegations in the Amended Complaint as true, which the Court

must at this juncture, the President is accepting prohibited

foreign emoluments without seeking congressional consent,

thereby defeating the purpose of the Clause to guard against

even the possibility of “corruption and foreign influence.” 3

Records of the Federal Convention of 1787, at 327 (Max Farrand

ed., 1966). Exercising the Court’s equitable discretion here is

therefore “not in derogation of the separation of powers, but to

maintain their proper balance.” Nixon, 457 U.S. at 754.

“[T]he plaintiff’s complaint [must] fall within ‘the zone

of interests’ to be protected or regulated by the statue or

constitutional guarantee in question.” Valley Forge Christian

Coll. v. Ams. United for Separation of Church & State, Inc., 454

U.S. 464, 475 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 499

41 (1975)). “We doubt, however, that it is possible to formulate a

single [zone of interests] inquiry that governs all statutory

and constitutional claims.” Clarke v. Sec. Indus. Ass’n, 479

U.S. 388, 400 n.16 (1987). Assuming the zone-of-interests test

applies here, the Court is persuaded that individual Members of

Congress satisfy that test. The President has conceded that

Congress as a body would satisfy the zone-of-interests test,

Mot. to Dismiss, ECF No. 15-1 at 31, but asserts in his reply

that “[p]laintiffs’ claim that they have been deprived of

legislative prerogatives as Members of Congress is at most

‘marginally related’ to the Foreign Emoluments Clause’s purpose

of guarding against foreign influence,” Reply, ECF No. 28 at 20

(citing Clarke, 479 U.S. at 394, 399). The Court disagrees. The

only way the Clause can achieve its purpose is for the President

to seek and obtain the consent of Congress before he accepts

foreign Emoluments. The Amended Complaint alleges that

plaintiffs’ injury is that they have been deprived of the right

to vote to consent to the President’s receipt of foreign

Emoluments before he accepts them. Am. Compl., ECF No. 14 ¶ 82.

Plaintiffs’ injury is therefore hardly “marginally related” to

the purpose of the Clause, but is directly related to the only

way the Clause can achieve its purpose. See Riegle v. Fed. Open

Mkt Comm., 656 F.2d 873, 879 (D.C. Cir. 1981) (“[T]he interest

which Riegle claims was injured by defendants’ action (his right

42 to advise and consent to the appointment of officers of the

executive branch) is within the zone of interests protected by

the Appointments Clause of the Constitution.” (citation

omitted)). 7 And as the Court explained at length in its previous

Opinion, here there is no adequate legislative remedy.

Blumenthal I, 335 F. Supp. 3d at 66-68.

The Court rejects the President’s suggestion that “extreme

equitable restraint” is appropriate here because plaintiffs can

only obtain relief from the President. Mot. to Dismiss, ECF No.

15-1 at 32. Rather, the fact that plaintiffs can only obtain

relief from the President is precisely the reason the Court

should exercise its equitable discretion here. See District of

Columbia v. Trump, 291 F. Supp. 3d 725, 752 (2018) (observing

that “it would be exalting form over substance if the

President’s acts were held to be beyond the reach of judicial

scrutiny when he himself is the defendant, but held within

judicial control when he and/or the Congress has delegated the

performance of duties to federal officials subordinate to the

President and one or more of them can be named as a defendant”

7 The Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) expressly disapproved of “Riegle’s intimation in dicta that the standing of private plaintiffs to bring particular action affects the propriety of our entertaining the same challenge when brought by a legislator.” Melcher v. Fed. Open Mkt Comm., 836 F.2d. 561, 565 (D.C. Cir. 1987). However, the Court did not address the zone-of-interests analysis in Riegle. See generally id. 43 (quoting Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587, 613

(D.C. Cir. 1974)); see also Br. of Separation of Powers Scholars

as Amici Curiae in Supp. of Pls. (“Br. of Separation of Powers

Scholars”), ECF No. 45 at 15-16 (explaining that the cases cited

by the President do not require dismissal of this lawsuit

because: (1) in Mississippi v. Johnson, 71 U.S. 475 (1866), the

Supreme Court dismissed the case and Mississippi then brought

suit against Secretary of War and two other defendants

challenging the same Acts; and (2) in Franklin v. Massachusetts,

505 U.S. 788 (1992) (plurality opinion), the injury could be

redressed by the Secretary of Commerce. Rather, when there is no

other remedy, courts have allowed suits against the President to

proceed).

The Court is mindful that “the separation-of-powers

doctrine requires that a branch not impair another in the

performance of its constitutional duties.” Loving v. United

States, 517 U.S. 748, 757 (1996) (citing Mistretta v. United

States, 488 U.S. 361, 397-408 (1989)). However, as amici

Separation of Powers Scholars point out, there is no such risk

here as the President has not identified what duties would be

impaired, which is distinct from Mississippi v. Johnson, where

“the relief sought by the plaintiff against the President would

have interfered directly with the President’s ability to take

care that the Reconstruction Acts were faithfully executed.” Br.

44 of Separation of Powers Scholars, ECF No. 45 at 17-18 (citing

Johnson, 71 U.S. at 499). Amici also note that “far from

distracting the President from his official duties, ‘any

Presidential time spent dealing with, or action taken in

response to’ a case clarifying the scope of the Foreign

Emoluments Clause is actually ‘part of a President’s official

duties.’” Id. at 19 (quoting Clinton v. Jones, 520 U.S. 681, 718

(1997) (Breyer, J., concurring in the judgment)). The Court

agrees. The parties dispute the meaning of “Emolument” but not

that the Clause applies to the President. Accordingly,

adjudicating this case ensures that the President fulfills his

duty to “take Care that the Laws be faithfully executed,” U.S.

Const. art. II, § 3, and consistent with his oath of office to

“preserve, protect and defend the Constitution of the United

States,” U.S. Const. art. II, § 1, cl. 8.

2. The Injunctive Relief Sought Is Constitutional

The President argues that the remedy plaintiffs seek is

unconstitutional because an injunction against him in his

official capacity would effectively “impose a condition on [his]

ability to serve as President and to perform the duties he is

duly elected to perform,” Mot. to Dismiss, ECF No. 15-1 at 56,

thereby “implicating core ‘executive and political’ duties,”

Reply, ECF No. 28 at 32 (quoting Johnson, 71 U.S. at 499).

Plaintiffs respond that the relief sought is not barred because

45 complying with the Clause is akin to performing a ministerial

duty rather than an official one, and there is no prohibition on

injunctive relief for the performance of a ministerial duty by

the President. Pls.’ Opp’n, ECF No. 17 at 52-54. The President

complains that if plaintiffs’ interpretation of the Clause is

correct, an injunction requiring his “compliance with the Clause

would impose significant burdens” on him. Reply, ECF No. 28 at

32. The President also disputes that compliance with the Clause

can be characterized as ministerial because of the “judgment”

and “planning” needed to ensure compliance, but that even if it

was so properly characterized, “this Court should still exercise

utmost restraint in deciding whether to enjoin a sitting

President.” Id.

The Court agrees that restraint is appropriate. However,

Supreme Court and D.C. Circuit precedent do not foreclose

injunctive relief against the President under certain

circumstances. A “grant of injunctive relief against the

President himself is extraordinary, and should . . . raise []

judicial eyebrows.” Franklin, 505 U.S. at 802. That said, the

Supreme Court “left open the question whether the President

might be subject to a judicial injunction requiring the

performance of a purely ‘ministerial’ duty.” Id. (citing

Johnson, 71 U.S. at 498–99). “A ministerial duty is one that

admits of no discretion, so that the official in question has no

46 authority to determine whether to perform the duty.” Swan v.

Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996) (citing Johnson, 71

U.S. at 498 (“[A] ministerial duty . . . is one in respect to

which nothing is left to discretion.”)). “[A] ministerial duty

can exist even ‘where the interpretation of the controlling

statute is in doubt,’ provided that ‘the statute, once

interpreted, creates a peremptory obligation for the officer to

act.’” Id. at 978 (quoting 13th Reg’l Corp. v. Dep’t of the

Interior, 654 F.2d 758, 760 (D.C. Cir. 1980)).

“The language of the Emoluments Clause is both sweeping

and unqualified.” 17 Op. O.L.C. at 121. The acceptance of an

Emolument barred by the Clause is prohibited unless Congress

chooses to permit an exception. Id. Given the “sweeping and

unqualified” Constitutional mandate, the President has “no

discretion . . . no authority to determine whether to perform

the duty” to not accept any Emolument until Congress gives its

consent. Swan, 100 F.3d at 977. Accordingly, seeking

congressional consent prior to accepting prohibited foreign

emoluments is a ministerial duty. Id. The President’s argument

regarding the “judgment” and “planning” needed to ensure

compliance with the Clause is beside the point. It may take

judgment and planning to comply with the Clause, but he has no

discretion as to whether or not to comply with it in the first

instance. See id. The President complains about the “significant

47 burdens” an injunction requiring him to comply with the Clause

would impose. Reply, ECF No. 28 at 32. However, as discussed

supra Section IV.D.1, the correct inquiry is not whether

injunctive relief requiring the President to comply with the

Constitution would burden him, but rather whether allowing this

case to go forward would interfere with his ability to ensure

that the laws be faithfully executed. See Clinton, 520 U.S. at

718 (Breyer, J., concurring in the judgment). Accordingly, the

injunctive relief sought in this case is constitutional.

V. Conclusion

For the reasons discussed above, the Court finds that:

(1) plaintiffs have stated a claim against the President for

allegedly violating the Foreign Emoluments Clause;

(2) plaintiffs have a cause of action to seek injunctive relief

against the President; and (3) the injunctive relief sought is

constitutional. The Court therefore DENIES the portions of the

motion to dismiss that were deferred in the Court’s prior Order.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge April 30, 2019