Donald Trump has been president of the United States for just a few days but is already embroiled in fights on several fronts. He's been feuding with the media over the size of his inauguration crowds, contending with a historic show of mass opposition from the Women's March on Washington, faces a defamation lawsuit from a woman who says Trump sexually assaulted her, and has a pressing need to fill empty slots in his government, just to name a few.
But the most significant moment for the new administration so far may have come Monday morning, when a coterie of prominent ethics lawyers teamed up with a watchdog group to sue Trump for allegedly violating the Constitution by accepting gifts from foreign governments. Filed by Citizens for Responsibility and Ethics in Washington (CREW) and a bipartisan group of constitutional scholars, including a former ethics lawyer in the George W. Bush administration, the suit claims the money going to Trump's business empire around the world represents a massive—and illegal—conflict of interest.
Trump's opponents have been highlighting for months how his real estate and licensing businesses could create potential conflicts for his administration. But this is the first legal challenge to Trump on the issue, and even if it doesn't succeed in forcing the president to divest from his companies, it might force some details about his finances to see the light of day.
Jeffrey Jacobovitz, a prominent Washington defense lawyer who represented members of the scandal-plagued Clinton administration in the 1990s, thinks the case has some kind of shot—assuming it can clear an initial procedural hurdle. Here's what he had to say about the first major lawsuit against the 45th president since his inauguration, and what it means.
VICE: You've seen your share of lawsuits alleging misconduct by government employees in Washington. How does this one stack up?
Jeffrey Jacobovitz: I think it's a well-drafted complaint. And I think one of the goals of the complaint, among other things, is if a judge lets it go forward—and the judge who the case was assigned to is an Obama appointee in New York—during discovery, it's possible Trump will be ordered to produce his tax returns.
Now, those returns may be ordered to be produced pursuant to a protective order in the case and remain confidential. But somebody may see it.
What, exactly, does the complaint allege? It's very specific, right?
It's narrowly drawn about the Foreign Emoluments Clause. What that clause says is a foreign nation or agent cannot give gifts to the president—essentially, the president cannot benefit from his dealings with foreign countries. So if dignitaries from Dubai or Kuwait stay in his hotel in DC, trying to win favor from the president, and the president—you don't even necessarily need to have a quid pro quo—but if the president is aware of that, that's trying to gain favor through a foreign gift.
If Trump has golf courses in Scotland or he's trying to build buildings in China and any of these countries afford him the opportunity, that could be construed as a gift—which would violate the Constitution, arguably.
Have we seen other cases like this under recent administrations?
This is an unusual situation. During the Clinton administration, I believe there was an investigation into gifts received and whether they were properly recorded. Now, a potential weakness of the lawsuit and one thing the judge will have to figure out is whether CREW has standing to bring the case, whether they've been injured, and what their general grievance is. You have to show some kind of personalized injury, and the issue is whether they've been able to show it.
Does it matter who brings the lawsuit—a liberal advocacy group, constitutional law professors, an ethics lawyer from the Bush administration? Is that likely to affect whether a judge will allow a case to go ahead?
You never can tell what a judge is going to do, whether a judge will issue an injunction, whether a judge will allow discovery and the case will proceed to trial, how long it would take, if there's an appeal and so forth. But there's risk to Trump with this lawsuit being filed.
Is the complaint too aggressive to be viable?
I think it's narrowly targeted, but you have an unusual situation here of the president being a businessman. How many presidents in the recent past were businesspeople and not politicians? This is a completely different scenario, in a situation where the president hasn't revealed his tax returns, so you don't know who he's gotten money from and who he owes money to. You don't know where his interests are, which countries he's invested in. There's a lot of question marks, and I think the complaint was drafted, in a sense, in a vacuum because they're trying to determine where he has those interests.
If a judge decides this group of scholars and CREW don't have standing, who could possibly make a valid complaint citing the Emolument Clause?
It could be some ethics committee on Capitol Hill. It could be the Department of Justice ethics office. But if these offices are controlled by Republicans and not independent, it's unlikely that these lawsuits would be brought. That might be an argument I would make to a judge, which is that I'm the best person or plaintiff to bring this lawsuit, because if don't bring it, no one else will.
If a federal judge does order Trump to release his tax returns, and the White House refused, how would that play out?
He could be held in contempt.
But practically speaking, does that matter for a president—or this president?
If there's a refusal and he's held in contempt, and he refuses to abide by the Constitution, then you get into the question of whether it rises to the level of somebody on the Hill moving for impeachment. Because if you're not following the law, you're not abiding by the law, others will rise up and say, "Why do I have to?"
This interview has been edited and condensed for clarity.
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