President Trump has been sued for allegedly violating the Constitution’s emoluments clause, which raises the question: Who should represent him? As it stands now, because the president has been sued in his official capacity, the Justice Department will appear for the defense on behalf of the United States. But in an unprecedented case involving the president’s extensive private business interests and its management through a controversial “trust” arrangement, that is the wrong choice.
Instead, the president should be required to retain private counsel to represent him. The Justice Department should express its view separately but also independently of the department’s senior appointed leadership. This arrangement would make it more likely that the Justice Department will advance a constitutional position in the broader public interest, not just in the narrow service of a president who happens to be in office at the moment.
The lawsuit filed in federal court in Manhattan alleges violations of two separate limitations on the receipt of “emoluments.” One, involving the foreign emoluments clause, asserts that foreign governments are directly or indirectly patronizing Trump’s hotels, leasing his properties and helping his businesses profit. The secondinvolves a parallel clause prohibiting the receipt of emoluments, beyond the president’s salary, from individual states or the federal government. Recently, new plaintiffs joined the suit to argue that this amalgam of public responsibility and private holdings subjects other U.S. businesses to unfair competition.