President Trump has been sued for allegedly violating the Constitution’s emoluments clause, which raises the question: Who should represent him? As it stands now, because the president has been sued in his official capacity, the Justice Department will appear for the defense on behalf of the United States. But in an unprecedented case involving the president’s extensive private business interests and its management through a controversial “trust” arrangement, that is the wrong choice.
Instead, the president should be required to retain private counsel to represent him. The Justice Department should express its view separately but also independently of the department’s senior appointed leadership. This arrangement would make it more likely that the Justice Department will advance a constitutional position in the broader public interest, not just in the narrow service of a president who happens to be in office at the moment.
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By having the president and the department go their separate ways, the basic proposition will have been laid down: In this extraordinary case, the government’s business and the president’s are not the same.
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