In January, two days after Donald Trump was inaugurated as President, an
anti-government-corruption group called Citizens for
Responsibility and Ethics in Washington (CREW) filed a lawsuit against him to
great fanfare. The suit alleged that Trump was violating the
Constitution’s foreign-emoluments clause, an obscure passage that
prohibits government officials from accepting gifts or other benefits
from foreign governments without approval from Congress. CREW’s case
would become just one of several emoluments lawsuits filed against
Trump, but it was the first, and it came together during the early,
emotional post-election period, when Trump’s many detractors were
looking for something—anything—to suggest that he could be removed
swiftly from office, or at least be prevented from using the Presidency
to boost his business.

Nine months later, the emoluments issue has faded from view. Those who
still hold out hope of removing Trump from office have focussed their
attention on the Justice Department’s Russia investigation, the
mechanics of the Twenty-fifth Amendment, or the chances of Democrats
taking control of Congress in 2018, with enough votes to begin an
impeachment proceeding. Yet the emoluments lawsuits continue to work
their way through the courts. On Wednesday, in a courtroom in lower
Manhattan, lawyers for CREW laid out their arguments for why the case
should be allowed to proceed. On the opposing side, lawyers for the
Justice Department asked District Judge George Daniels to dismiss the
lawsuit. On one level, the point-counterpoint was an interesting
intellectual exercise: such a case has never been pursued in federal
court before, and there are compelling arguments to be made on either
side. On another level, however, is a larger question about how much
actual risk the lawsuit poses to the President, and whether the
once-celebrated effort to try to topple Trump on the basis of
constitutional violations is effectively over.

The future of CREW’s case could hinge on whether judges accept the group’s
premise that the emoluments issue is creating a class of victims. The
pages and pages of evidence submitted in the suit include details of
Trump’s ownership in L.L.C.s; partnerships operating in at least twenty
foreign countries; and the workings of the Trump International Hotel in
Washington, D.C., where news organizations have documented spikes in
bookings by foreign diplomats “eager to curry favor” with Trump. The
hotel recently hired a “director of diplomatic sales” to court this
foreign-government consumer base, and has aggressively raised its prices
since the election. CREW contends that the elevated profit the hotel has
reported is coming largely from foreign business. On Wednesday, in
court, Deepak Gupta, an attorney arguing on behalf of CREW who was
previously litigation counsel for the Consumer Financial Protection
Bureau, called the hotel “an emoluments magnet.”

When it was their turn to speak at the hearing, the Justice Department
attorneys arguing Trump’s side of the case got off to a rough start.
Since the beginning, the D.O.J. has taken the position that CREW lacks
the standing even to bring the case, and that therefore it should be
thrown out of court; in response, CREW has recruited several business
owners who allege that they have been harmed by Trump’s unfair
activities. Brett Shumate, a young deputy assistant Attorney General
with a dimple in his chin, spoke first. The claims being made by the
plaintiffs were “too abstract,” he said, and could be characterized as a
“generalized grievance” that wasn’t specific enough to justify the case
moving ahead. A President couldn’t violate the emoluments clauses simply
by owning a business that receives some foreign revenue, he went on,
citing book royalties collected by President Obama as one example.
Further, he said, no one had been harmed, economically speaking, as a
specific result of Trump’s business activities. As he spoke, the seven
lawyers at the CREW table (including Norman Eisen, of CREW, and the
former New York congressional candidate Zephyr Teachout) scribbled notes
back and forth to one another on little green slips of paper, nodding and
scowling periodically.

Daniels, the judge, interrupted Shumate with a skeptical-sounding
question about what the definition of an emolument even was. The D.O.J.
disagreed that an emolument was “anything of value, as the plaintiffs
allege,” Shumate said. Rather, he argued, an emolument was “a benefit
that was conferred in exchange” for something, like a quid quo pro—I’ll
rent your hotel room if you sign this treaty. If the treaty was never
signed in exchange for the hotel business, then the transaction was
simply a gift, the D.O.J. seemed to be saying. Shumate and the judge
then entered into an argument about what that even meant, with the judge
throwing out increasingly absurd-sounding examples to see if Shumate
would acknowledge that they were emoluments rather than simple presents.
If, Daniels asked, a foreign agent said, “We want you to sign this
treaty, and we’ll buy a million dollars of your hot dogs so you can put
a million dollars in the bank,” but then the President failed to sign
the treaty after taking the money, “How is that not an emolument?” By
the end of it, even Shumate seemed confused.

There was less levity once Gupta started his presentation on behalf of
the CREW case. Wearing a navy suit and tie and chunky glasses, Gupta
said that Trump’s defenders were arguing that “the President is above
the law,” which was troubling on its face. He described several of the
restaurateurs who were part of the lawsuit, and how their businesses,
which drew large numbers of foreign dignitaries, had suffered as people
had diverted bookings to Trump properties in order to flatter and enrich
him, all of which, he suggested, posed dangerous questions for the
functioning of democracy. Daniels remained focussed, however, on the
more technical question of whether the case should even exist in the
first place. “This is not intended to protect individuals from
competition,” he said, referring to the emoluments clauses. “How is this
an injury caused by his violation of the emoluments clause?” What
followed was a drawn-out exchange over the jurisdictional issues raised
by the suit: Why, Daniels kept asking, is this a matter for the courts,
rather than for Congress? If Congress is concerned about the President’s
business activities, shouldn’t it do something? As the debate went on,
the band of CREW lawyers started to look increasingly anxious.

“Is this an appropriate case to enjoin a sitting President of the United
States?” Shumate said as part of his closing statement. “We would argue
this should be addressed in the political arena.” That, of course, is
exactly what President Trump would like—to leave matters of his business
conflicts and his ability to make money while in office in the hands of
the Republican-controlled Congress. To judge from Wednesday’s hearing,
Trump will be allowed to continue tweeting about his Bedminster, New
Jersey, golf course, and praising the chocolate cake at Mar-a-Lago,
while the remittances accumulate in his bank account. Lawsuits aside,
other political figures might have been seriously damaged by such a
situation. (To say nothing of those who would have taken steps to avoid
the conflict of interest.) But for Trump the emoluments issue, so far,
remains nothing but a small nuisance.