The Justice Department’s Nixonian defense of Trump

Remember “when the president does it, that means it is not illegal.”


Two days after Donald Trump took office, an all-star team of lawyers and legal scholars filed a lawsuit claiming that the Trump Organization’s business dealings with both the U.S. and foreign government’s violates the Constitution’s bans on “Emoluments.” On Friday, the Justice Department filed a motion seeking to dismiss this lawsuit, and that motion includes an unusually Nixonian argument.

The plaintiffs in Citizens for Responsibility and Ethics in Washington v. Trump, DOJ claims, “seek an unconstitutional remedy: an injunction against the President is his official capacity.”

This argument isn’t quite the same thing as “when the president does it, that means it is not illegal.,” but it’s pretty close. Instead of echoing President Nixon’s infamous suggestion that the law bends to the president’s will, DOJ makes the more nuanced argument that, even if Trump is violating the Constitution, the courts are largely powerless to do anything about it.

The Justice Department cites a number of cases holding that the president is “absolutely immune” from suits “in his official capacity.” And they are right that the president does, indeed, enjoy exceptionally broad immunity from suits seeking to bind the their ability to perform their official duties.

But there’s also a pretty glaring weakness in this argument. The plaintiffs in CREW aren’t seeking to prevent Trump from taking an official action that falls within his duties as president. To the contrary, they want to prevent Trump from profiting from certain side deals unrelated to his duties as president.

Renting ballrooms to foreign diplomats is not generally considered an official duty of the President of the United States.