ROBERT SIEGEL, HOST:
The Trump International Hotel, along with Trump Tower in New York and many other of Donald Trump's business interests, all figure in a federal lawsuit filed this morning by a group called CREW. CREW stands for Citizens for Responsibility and Ethics in Washington. And the nonprofit claims President Trump is violating the Emoluments Clause when foreign entities book rooms at the D.C. hotel or lease Trump office space.
CREW wants a ruling on the meaning and requirements of the Emoluments Clause and an injunction that prevents President Trump from violating it. But what standing does CREW have to bring that suit, and what harm can they show? Well, I put that to CREW attorney Deepak Gupta.
DEEPAK GUPTA: The injury that we're alleging is that CREW has had to divert its own organizational resources, and so it's been financially harmed because all of the work that it would normally do it's had to put on hold because of these unprecedented conflicts of interest.
SIEGEL: Is there precedent for plaintiffs being granted standing based on the fact that they've had to shift their emphasis, especially nonprofits?
GUPTA: There is. The Supreme Court in the 1980s decided a case called Havens that involved housing discrimination organizations. And the idea of standing in that case was that if there is housing discrimination and an organization is combating it and they have to divert all their resources to address that discrimination, the organization itself is injured. And there's a line of cases since then that recognizes that kind of standing.
SIEGEL: So one could bring that capital punishment case by saying the end the death penalty groups have to work too hard in the state of Texas or Georgia. Therefore they have standing to sue under the undue harsh penalties clause.
GUPTA: Think there are limits to this theory of standing. There's got to be a close nexus between the violation that's being alleged and the organization and its injury. And so we're not saying that this will be a walk in the park. We will have to make our legal case.
And I also think it's important to recognize that there are other kinds of injuries that the Emoluments Clause violation causes, injuries to other hotels who may be competitors, consumers, all sorts of other people. And I think it's entirely realistic to expect that those kinds of theories will emerge as well.
SIEGEL: Trump's lawyer from the firm of Morgan Lewis - she had helped arrange his creation of a trust for his business interests - had said that paying for a hotel room is not a gift or a present, and it has nothing to do with an office - that's a word from the Emoluments Clause. It is not an emolument.
GUPTA: Well, the framers used two words. They used the word present, and they use the word emoluments. A present describes something that I give you without getting anything in return. And emolument describes a payment where maybe I expect something in return.
And the argument that the Trump lawyers are making is, well, this is OK as long as it's fair market value. That ignores the fact that built into the price is some profit that comes to Donald Trump. And this is not just some abstraction. It's happening already. And diplomats have told news organizations on the record that they are moving their business there because they want to curry favor with the president.
SIEGEL: Should your suit proceed, would it be right for it to gain access to Donald Trump's tax records, and would you as a lawyer favor the precedent that you should be able to pry open somebody's tax records for a lawsuit that some people might regard as a political lawsuit?
GUPTA: Well, there - so there are two questions there. First, let me address the concern that this is a political lawsuit because it's not. If Donald Trump were a Democrat and he had exactly the same extensive and secret financial holdings, we'd be bringing precisely the same lawsuit. This is a bipartisan group. This is not a political exercise. So that's point number one.
And point number two - the purpose of this lawsuit is not simply to get some documents in discovery. Although Discovery will be important because President Trump has been so secretive about his holdings. But this is not just about the tax returns. This is about testing the proposition that the framers really meant it when they said that the president has to have undivided loyalty to the American people and should not have financial entanglements with foreign governments.
SIEGEL: Deepak Gupta of CREW, thank you very much for talking with us about the Emoluments Clause lawsuit.
GUPTA: Thank you. Thanks for having me.
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