Today, the Department of Justice submitted a letter to Judge Daniels (SDNY) in CREW v. Trump. The purpose of the letter is to correct a misstatement during oral arguments last week (which I flagged in my prior post). The important development is that the government is no longer conceding that the Foreign Emoluments Clause applies to the President. The Justice Department has carefully avoided this issue, only operating under the assumption that the clause did apply, but now the issue is stated clearly.
Here is the body of the letter:
Dear Judge Daniels:
I write to correct a misstatement I made during the October 18, 2017, hearing on the government’s motion to dismiss. Near the conclusion of the hearing (transcript at p. 94, line 11-14), the transcript reflects that I stated “for purposes of our motion, we are assuming the President is subject to the Domestic Emoluments Clause.” In so stating, I intended to refer to the Foreign Emoluments Clause, rather than the Domestic Emoluments Clause. I apologize for the error. As I also stated, the government has not conceded that the President is subject to the Foreign Emoluments Clause. There is, however, a transcription error in that regard.
As it stands now, there is absolutely nothing that the Plaintiffs and their Amici have submitted to the court to rebut our position that the President is not bound by the Foreign Emoluments Clause. (The Legal Historians did make such a claim, but subsequently withdrew it.) Count I concerning the Foreign Emoluments Clause must be dismissed.
Update: To be clear, the shift here is from the 2009 OLC Opinion, which stated that the Foreign Emoluments Clause “surely” applies to the President. (Seth and I discussed it in our WSJ piece).