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.
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