×

Democrats’ lawsuit against Trump over foreign payments is absurd

  • The latest attempt to bring down President Trump is stretch of a lawsuit involving foreign payments laws.
  • But the suit is based on a ridiculously broad interpretation of the Constitution that defies history and logic.
  • And it makes the Democrats look even more like they're against business.
President Donald Trump and Japanese Prime Minister Shinzo Abe sit down for dinner at Trump's Mar-a-Lago resort on February 10, 2017.
Nicholas Kamm | AFP | Getty Images
President Donald Trump and Japanese Prime Minister Shinzo Abe sit down for dinner at Trump's Mar-a-Lago resort on February 10, 2017.

Just in case the effort to prove President Donald Trump colluded with the Russians or obstructed justice loses steam for good, the Democrats are now launching a new offensive to unseat or at least debilitate the Trump presidency.

Almost 200 Democrats in Congress sued President Trump in federal court on Wednesday, saying he had accepted funds from foreign governments through his hotel and golf club businesses without congressional consent in violation of the U.S. Constitution. This follows a similar suit filed this week by the attorneys general of Maryland and the District of Columbia.

Call it the Battle of Mar-a-Lago.

But you can also call it a stretch. This effort relies on an incredibly broad definition of the Constitution's Emoluments Clause, which is the specific section of the Constitution which bars compensation or gifts to government officials from foreign governments. Of course, compensation and gifts as opposed to payment for services rendered at a hotel or a golf club are two different things. And, as many critics have pointed out, defining all payments as this kind of illegal compensation would have also barred President Obama from receiving any money from foreign state libraries that bought and stocked his book, "Dreams from My Father."

"If interpreted as today's Democrats want it to be, the Emoluments Clause would have barred people like Thomas Jefferson and James Madison from serving in office because of the extensive state involvement in their existing and ongoing tobacco farming businesses."

You don't need to be a legal scholar to know this, just a casual history buff or informed investor. These rules were written at a time when men with outside businesses dominated the roster of elected leaders and high government officials. If interpreted as today's Democrats want it to be, the Emoluments Clause would have barred people like Thomas Jefferson and James Madison from serving in office because of the extensive state involvement in their existing and ongoing tobacco farming businesses. It's simply logically inconceivable that the Founders would craft a rule to preemptively exclude themselves from office.

And according to University of Montana Law Professor Robert Natelson, this broad definition of the clause would also make it unconstitutional for almost any government employee to purchase the debt securities of foreign governments and bar them from selling goods abroad where they might be purchased by a foreign government. So those Congressional Democrats joining in this suit better check their portfolios for overseas stocks and bonds ASAP.

Another legal expert, Professor Andy Grewal from the University of Iowa, argues that payments to pre-existing Trump-owned businesses aren't covered by these rules unless there is direct payment to Trump personally that leap frogs those businesses' coffers.

The other big problem is that Trump's hotels, and especially his golf resorts, have been generally successful businesses for decades prior to his very recent foray into public office. Without specific proof of a massive boost in investment or hotel booking by a foreign government with further evidence of some kind of quid pro quo, this lawsuit is yet another waste of the American peoples' time.

But also, consider the optics of all of this. The Democrats, who have long since abandoned the floor on the economic discussion in America, are now literally filing a suit to protest foreign investment in American jobs and businesses. Yes those businesses happen to be owned by President Trump, whom they see as their arch enemy. But it's decidedly bad that the only economic activity the Democrats are making a big deal about lately is economic activity they're against.

So file this latest Quixotic and self-defeating Democrat effort to oust President Trump in the same place as the attempts to undermine the Electoral College and the still unproven crusade to prove Trump campaign collusion with the Russians. This is yet another distraction from the serious work the Democrats need to be doing to find new leadership and some kind of positive message to present to the country.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.