BLUMENTHAL et al v. TRUMP

Filing 67

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 4/30/2019. (lcegs1)

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 1 of 48

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-

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 2 of 48

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.

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.
1

2

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 3 of 48

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
The Court appreciates the illuminating analysis provided by the
amici.
2

3

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 4 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 5 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 6 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 7 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 8 of 48

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
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.
3

8

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 9 of 48

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

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.
4

9

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 10 of 48

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, generalpurpose 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

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.
5

10

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 11 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 12 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 13 of 48

[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]
“officeand
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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 14 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 15 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 16 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 17 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 18 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 19 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 20 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 21 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 22 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 23 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 24 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 25 of 48

a visiting foreign diplomat . . . would be ‘in an employmentlike 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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 26 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 27 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 28 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 29 of 48

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-thecircumstances 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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 30 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 31 of 48

“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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 32 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 33 of 48

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 nongovernmental 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 NonGovernment 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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 34 of 48

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

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).
6

34

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 35 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 36 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 37 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 38 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 39 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 40 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 41 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 42 of 48

(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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 43 of 48

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”
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.
7

43

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 44 of 48

(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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 45 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 46 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 47 of 48

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

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 48 of 48

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

48