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Is Trump violating the Constitution? In absentia, he defends himself in court

The defendant was elsewhere, stirring and twittering in his new city, his name rarely spoken — just the title sufficed — but always top of mind inside an overstuffed Manhattan courtroom. 

“The president” is a businessman, the plaintiffs’ lawyer reminded the judge. “The president” refuses to leave the marketplace. This is hardly a fair fight, the logic goes, for those who are not “the president.” 

“I want to address the government’s view,” said the lawyer, Deepak Gupta, “that the president is above the law.” 

Such was the civic exercise Wednesday — part liberal catharsis theater, part constitutional drama of the highest order — aimed at answering a simple question: Is a sitting president, disinclined to relinquish his gilded empire, violating the Constitution by continuing to own and profit from his businesses? 

The proceedings were the most prominent turn yet in a nearly yearlong legal effort to shine a light on President Donald Trump’s business ties and press him to divest. At issue is a lawsuit filed this year in the U.S. District Court for the Southern District of New York by a legal watchdog, Citizens for Responsibility and Ethics in Washington, or CREW. The group argues that Trump is violating the emoluments clause of the Constitution, which says a president may not accept any economic benefit from foreign governments or the United States government beyond a salary. 

Other plaintiffs in the case include a group representing restaurants, the owner of a hotel business in New York and a woman who books hotel events in Washington. The hearing concerned the government’s effort to have the case dismissed. 

“Their supposed injuries are nothing more than abstract disagreements with the president,” Brett Shumate, a deputy assistant attorney general arguing for the president, said of the plaintiffs. They have claimed harm from Trump’s presence as a competitor. 

Presidential engagement in private business, Shumate noted, is nearly as old as the country itself, dating to George Washington. “What the plaintiffs want the court to believe is that President Washington was a crook,” he said. 

Despite nominally ceding control of his business operations to his sons, Trump has outraged ethics experts who say that retaining a beneficial interest in his company remains a colossal conflict. There is also the Trump International Hotel in the capital itself, within walking distance of the Oval Office, and the hotel become a symbol of the president’s tangle of business interests, subsisting in plain view. 

The result has been a familiar role for Trump, up to a point. 

“Donald J. Trump, defendant” has graced reams of court papers through decades of deal-making and New York real estate litigiousness. 

“Donald J. Trump, in his official capacity as president of the United States of America” remains a relatively fresh phenomenon, with the full force of the Justice Department defending him. 

Yet since his election, Trump’s foes have defined themselves in opposition to a president they see as a unique threat to a well-oiled democracy and its norms. 

Women v. Trump. 

Patients v. Trump. 

Kneeling linebackers v. Trump. 

On Wednesday, for over two hours in a courthouse on Pearl Street in Lower Manhattan, the resistance was codified, reveling in its day before the bench. 

The plaintiffs could offer customers the finest of accommodations, competitive prices, exquisite service, Gupta suggested. 

“What our clients can’t offer,” he said, “is the ability to curry favor with the president of the United States.” 

Though the showcase for lawyerly theatrics seemed to thrill presidential critics inside and outside Courtroom 11A — in the neighborhood of “Law and Order” fame — no immediate resolution arrived Wednesday. The judge, George B. Daniels, said to expect a decision in 30 to 60 days. 

During his time at the microphone, Shumate argued that the plaintiffs’ interpretation of the emoluments clause was overbroad. 

“The president is not controlling access to the market,” Shumate said, noting that any profits accrued by Trump had not been connected to a particular action he took in government. “He is a market participant.” 

Daniels questioned the lawyers for both sides, at times skeptically. He offered hypotheticals to Shumate involving a car sale gone awry and a million-dollar hot dog transaction. 

It was clear, Daniels said, that the founders “intended to prevent” the taking of emoluments in exchange for an expectation of government action. 

“I don’t understand the argument that somehow the president has to follow through,” the judge said. 

The most piercing questions for the plaintiffs centered on whether they had sufficient standing to bring the case. Even if the plaintiffs had indeed been harmed by the president’s continued business interests, Daniels asked, “How do you trace that injury to the emoluments clause?” 

“Both of you are in uncharted waters,” he said at another point, addressing the two lawyers, suggesting there was little precedent for some elements of the emoluments debate in the Trump era. 

For Trump, who in a past life found himself on the other end of government-related litigation, the moment provided another signpost of a singular American arc. In the 1970s, the Justice Department’s Civil Rights Division sued Trump and his father, accusing them of refusing to rent to black tenants. 

Trump enlisted a lawyer who would become a mentor, Roy Cohn, the former redbaiting consigliere of Sen. Joseph McCarthy. Other lawyers had advised Trump to settle with the government, he later recalled. Cohn had other advice. “Tell them to go to hell,” Cohn said, before countersuing the government for $100 million, “and fight the thing in court.” 

The Trumps ultimately settled, admitting no guilt. 

Decades later, this latter impulse has persisted, long enough to permeate the federal government. Trump’s team showed no desire Wednesday to concede fault, though confined its arguments to the legal questions — what the emoluments clause does and does not demand — and not the ethical questions of whether Trump should more fully extricate himself from his businesses. 

Among the plaintiffs, the mere fact of the hearing seemed to supply a measure of comfort. 

They might yet win. They might not. But the moment itself, Gupta said, was worth celebrating. 

“It’s not every day that you get to argue against the president of the United States in court,” Gupta said afterward. “There are a lot of countries in the world where you don’t get to do what we did today.”

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