WASHINGTON • George Washington did it, so Mr Donald Trump can, too.
That is the Department of Justice's (DOJ's) take on why the United States' 45th President is not violating the US Constitution by accepting payments for goods and services from foreign governments without congressional approval.
The foreign emoluments clause of the Constitution does not apply to fair-market commercial transactions - such as hotel bills, golf club fees, licensing payments and office rent - the DOJ argued last Friday in a filing. The government is asking a judge to throw out a lawsuit from a watchdog group that claims Mr Trump's business dealings violate the Constitution.
If accepted by the court, the argument would eliminate a major legal obstacle for Mr Trump's businesses to keep money from foreign officials and companies owned by foreign governments.
Citizens for Responsibility and Ethics in Washington (Crew) sued Mr Trump within days of his inauguration in January, claiming foreign officials are doing business with Trump properties as a way to curry favour with the President. The group is seeking an order from US District Judge Ronnie Abrams in Manhattan saying that Mr Trump is violating the foreign emoluments clause and the domestic emoluments clause, which specifically bars presidents from taking payments from federal or state officials.
"Neither the text nor the history of the clauses shows that they were intended to reach benefits arising from a president's private business pursuits having nothing to do with his office or personal service to a foreign power," the government said in the filing.
"Were plaintiffs' interpretation correct, presidents from the very beginning of the republic, including George Washington, would have received prohibited 'emoluments'."
The US said Washington gave detailed instructions for the operation of his Mount Vernon plantation, and exported flour and cornmeal to England, Portugal and Jamaica while president. Thomas Jefferson exported tobacco to Great Britain. No concerns were raised over their receiving foreign emoluments. And Mr Barack Obama received royalties on his books, many of which are held in the libraries of foreign public universities, according to the government.
The DOJ also argued that Crew and the other plaintiffs in the case lack legal standing - that they didn't suffer a sufficient legal harm to allow them to sue. This argument attacks the authority of the court to consider the case at all and could result in a quick dismissal of the case if accepted by the judge. The government also claims it would be unconstitutional for a judge to issue an injunction against the President in his official capacity.
Crew said in a statement: "It's clear from the government's response that (it does not) believe anyone can go to court to stop the President from systematically violating the Constitution. We heartily disagree and look forward to our day in court."
As part of the suit, Crew seeks access to Mr Trump's tax returns and other financial records. The group has said Mr Trump should liquidate his business holdings and put the proceeds in a blind trust.
While presidents are not subject to ethics laws that apply to other federal office-holders, most lawyers, including Mr Trump's, agree that the foreign emoluments clause does apply to presidents. Courts have not ruled on the question directly, but the DOJ's Office of Legal Counsel in 2009 assumed that the clause applied to then president Obama but did not bar him from accepting a Nobel Peace Prize.
Mr Trump announced in January he would turn over operation of his businesses to his sons, Eric and Donald Jr, and chief financial officer Allen Weisselberg. In addition, the Trump Organisation vowed not to make any new business deals outside the US while Mr Trump is President. Critics said the plan failed to address conflicts of interest between Mr Trump's roles as President and as a billionaire businessman.