Monday, November 13, 2017

Rule of Law Clinic Files Brief in Foreign Emoluments Case

The Rule of Law Clinic at Yale Law School recently filed an amicus brief on behalf of 22 former national security officials in support of more than 200 members of Congress, who have filed a lawsuit against President Trump for allegedly violating the Constitution’s Foreign Emoluments Clause through his private business entanglements with foreign governments.

The lawsuit, which is before the U.S. District Court for the District of Columbia, involves the interpretation of a constitutional provision at the core of protecting the United States’ national security and foreign policy interests. The Foreign Emoluments Clause states that U.S. officials may not accept value from foreign governments without notifying and receiving approval from Congress.

While taking no position of the facts, the amicus brief argues that the alleged facts—which students said must be taken as true on a motion to dismiss—are sufficient to state a claim under the Foreign Emoluments Clause. The brief argues that the clause is a vital national security provision, designed to protect U.S. national security and foreign policy interests by requiring congressional notice and approval of the President’s private business dealings with foreign governments. The brief also argues that it is essential to U.S. national security in the modern era that the Foreign Emoluments Clause be read in a manner that encompasses private business dealings with foreign governments.

“Allowing large streams of foreign government funds to go undisclosed and unreviewed would create a risk of undue influence through the entanglement of private funds and public decisions,” states the brief. “It would undermine U.S. anti-corruption and good governance efforts around the globe as a key tenet of U.S. national security and foreign policy, and it would inject confusion and fragmentation into our diplomatic relations by allowing foreign officials multiple opportunities for leverage in our national security and foreign policy.”

Giving the Foreign Emoluments Clause its proper reading would allow Congress the necessary oversight to ensure that no foreign influences improperly interfere with American policy without undercutting the Executive’s wise exercise of national security and foreign policy prerogative, according to the clinic.

The 22 signatories represent a bipartisan group of former national security, foreign policy, and intelligence officials who have worked at the senior-most levels of the U.S. government for Presidents of both major political parties. They number former cabinet members and advisors from both political parties, including Secretary of State Madeleine Albright, Secretary of State John F. Kerry (Yale College ’66), and Secretary of Defense Chuck Hagel. Several Yale Law School graduates are also included on the brief, including James B. Steinberg ’78, James C. O’Brien ’88, Jeff Prescott ’94, and Josh Geltzer ’11.

Five current students researched and drafted the amicus brief: Alexandra Mahler-Haug ’19, who led the project, Adeel Mohammadi ’19, Colleen Culbertson ’19, Joseph Schottenfeld ’19, and Nathaniel Zelinsky ’18.

“We are proud to help this bipartisan group of former officials communicate to the courts why rigorous ethical standards are so important to the national security and foreign policy interests of the United States,” said Mahler-Haug. “The Foreign Emoluments Clause was designed expressly to protect against undue influence in the U.S. national security and foreign policy making process.” 

“It is an honor to represent these former national security officials in highlighting the importance of the Foreign Emoluments Clause to our modern-day national security framework,” said Colleen Culbertson, another student member of the team.

Professor Harold Hongju Koh and Visiting Clinical Lecturer in Law Phil Spector steered the clinic’s work on these issues.

“Our clients scrupulously complied with ethics rules, including the Foreign Emoluments Clause, both to assure the integrity of our national security process and to legitimize our foreign policy criticism of self-dealing by governments abroad,” said Professor Koh.

“The Foreign Emoluments Clause is a bedrock constitutional principle that the Founders ratified to protect the national security and foreign policy of the nation from undue influence,” added Phil Spector. “This brief explains how that principle is as important today as it was at the Founding, and how the Trump administration’s narrow reading of the Clause would hollow out its critical ethical guardrails.”

The Rule of Law Clinic focuses on maintaining U.S. rule of law and human rights commitments in four areas: national security, antidiscrimination, climate change, and democracy promotion. In addition to its work on the Foreign Emoluments Clause litigation, the Clinic has also recently worked on issues related to the Administration’s travel ban, transgender service members, and the U.S. Census.