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D.C. Circuit delays congressional Emoluments Clause case in setback to Trump opponents

D.C. Circuit delays congressional Emoluments Clause case in setback to Trump opponents

We started out with three Emoluments Clause lawsuits: one in New York, one in Maryland, and one in D.C. The plaintiffs are now 0-for-3 in getting to the discovery stage.

https://www.youtube.com/watch?v=KtBSk8JJv-U

Two months ago, Harvard Law Professor and fiercely anti-Trump pundit Laurence Tribe bragged that “it’s the president’s corrupt financial entanglements with foreign governments that I’ve always believed would bring him down in the end.” More recently, Tribe declared that “the Trump strategy of denying, delaying, deflecting, and dissembling while continuing to defy the Constitution has all but run its course and that the chickens are finally coming home to roost.”

No one familiar with Tribe’s history of wishful predictions should be surprised to learn that the opposite is actually happening: the plaintiffs, some of whom Tribe represents, have been losing as of late. (See our prior posts on this.)

Their streak continues, this time with a congressional lawsuit. The NYT reports:

A federal appeals court delivered a setback on Friday to a lawsuit by congressional Democrats accusing President Trump of illegally benefiting from his business interests while in office, saying a lower court judge hearing the suit had not adequately considered questions about the separation of powers between the president and Congress.

To get into more detail, a three-judge panel of the D.C. Circuit ruled that the lawsuit presented novel legal questions warranting immediate appellate review and that the trial judge committed plain error in concluding otherwise. But the panel declined to grant the extreme relief of dismissing the case outright, as the President’s lawyers had asked. The panel members are Judges Patricia Millett, Nina Pillard, and Robert Wilkins, all of whom were appointed by President Obama.

Friday’s ruling means that discovery will be delayed for months while the panel decides whether the case can even be heard.

The litigation revolves around the undisputed fact that President Trump’s businesses, particularly the Trump International Hotel in Washington D.C., are being patronized by foreign dignitaries. The Foreign Emoluments Clause, Art. I, § 9, cl. 8, provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In June 2017, around 200 Democratic Members of Congress sued President Trump in the D.C. federal district court, claiming that because Congress has not consented to President Trump’s profits from foreign governments, Congress and by extension its Members are being “deprived” of “their ability to vote on which emoluments he, as a federal officeholder, may accept.” The case is Blumenthal v. Trump, with the lead plaintiff being Senator Richard Blumenthal of Connecticut.

U.S. District Judge Emmett Sullivan ruled that the case could proceed, rejecting Trump’s arguments that the Members lacked standing and that his hotel profits were not “emoluments.”

The government asked Judge Sullivan to permit an immediate appeal before opening discovery, but on June 25 he said no, holding that the “President has failed to meet his burden of establishing ‘that an immediate appeal from the order may materially advance the ultimate termination of the litigation.’” (Ordinarily, you can only appeal a final order: appealing an intermediate order, like a finding of standing, requires the trial judge’s permission.)

When Judge Sullivan declined to allow an appeal, Senator Blumenthal hailed the decision as a “tremendous victory”:

In a thoughtful, well-reasoned opinion, Judge Sullivan articulated what the law makes clear: there is absolutely no reason to delay one more day in ensuring that President Trump is held accountable for his violation of the Constitution’s preeminent anti-corruption provision. For more than two years, President Trump has thumbed his nose at the American people in flagrant violation of the law. Today, the courts spoke: no longer.

Yeah, a thoughtful, well-reasoned opinion that three emphatically liberal judges called an “abuse[] of discretion” that “did not adequately address… the separation of powers issues present in a lawsuit brought by members of the Legislative Branch against the President of the United States…”

Immediately after the D.C. Circuit’s ruling came out, a chastened Judge Sullivan halted all discovery.

We started out with three Emoluments Clause lawsuits: one in New York, one in Maryland, and one in D.C. The plaintiffs are now 0-for-3 in getting to the discovery stage, and the Supreme Court hasn’t even gotten involved. The New York case was dismissed for lack of standing and is currently on appeal to the Second Circuit. The Fourth Circuit dismissed the Maryland case for lack of standing as well, though the full court could rehear that decision. (The Maryland trial judge, Peter Messitte, also tried to open discovery and prevent immediate appellate review.)

And one has to keep in mind that the probable purpose of these lawsuits is the discovery itself. In fact, it is unclear what specific relief the plaintiffs could obtain if even they prevail. The D.C. lawsuit requests “injunctive relief, enjoining [President Trump] from accepting ‘Emolument[s]’ from foreign states without first obtaining the consent of Congress,” but fails to explain what form that relief could actually take.

Should Trump businesses be barred from transacting with foreign governments? Should his hotel tell foreign dignitaries that they cannot stay there? What if that violates public accommodations laws? Should the President himself be compelled to divest? Should he be forced to donate the potentially illicit profits? Should his companies be ordered to just rip out their plumbing and stop operating?

As the Fourth Circuit noted when it dismissed the Maryland case:

Moreover, the likelihood that an injunction barring the President from receiving money from the Hotel would not cause government officials to cease patronizing the Hotel demonstrates a lack of redressability, independently barring a finding of standing. This deficiency was remarkably manifested at oral argument when counsel for the District and Maryland, upon being questioned, was repeatedly unable to articulate the terms of the injunction that the District and Maryland were seeking to redress the alleged violations. When plaintiffs before a court are unable to specify the relief they seek, one must wonder why they came to the court for relief in the first place.

It is unfortunate that President Trump didn’t voluntarily do more to distance himself from his businesses, but he isn’t exactly the type of guy who will do anything out of an abundance of caution, let alone part with his properties. And whether or not this insouciance presents a constitutional problem, many judges appear increasingly skeptical that the courts are the proper forum for remedying it. (That’s not to say the case is over: the Second Circuit might well revive the New York lawsuit.)

But the President has reason to be cautiously optimistic. I actually think his legal position might even be strong enough for him to propose a generous settlement: “If you guys drop the lawsuits, I won’t move all meetings of the U.N. Security Council to the Trump International Hotel.”

This post has been updated.

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Comments

Has anyone left congress poorer than entering?

So the Clinton White House could sell the Lincoln Bedroom for $10k a pop, but Trump can’t even be permitted to run his upscale Motel 6 with a stand-in crew while he’s in office?

Sounds fair. If you’re a Democrat.

    Tiki in reply to georgfelis. | July 22, 2019 at 9:04 pm

    I’d forgotten about that. Nakedly selling access to the president. And the Coffee Klatch side business?

    Milhouse in reply to georgfelis. | July 23, 2019 at 9:27 am

    Ah, but did they ever have a foreign government stay there? Or a state government? Federal officeholders (and for now let’s pretend the president is one) are allowed to accept emoluments from anyone else.

    Not that any of this is relevant, because (a) an arms’ length market transaction is not an emolument, and (b) the presidency is not an office of profit or trust under the united states. So the lawsuits are frivolous from the start.

Publius_2020 | July 22, 2019 at 8:30 pm

“one must wonder why they came to the court for relief in the first place”

No; actually no one wonders. Everyone knows. That’s the comedy of it. No one seemed to care about Kennedy’s family wealth and business (see, e.g., Chicago Merchandise Mart), or Obama’s $1.6 million in foreign royalties in 2009. But because it’s Trump, no stone can be left unturned in the warfare designed to bring him down, even if the stones have to be virtually invented.

The Fourth Circuit decision was a gem, even if the final decision rested on standing grounds. It castigated the district court repeatedly:

“the [district] court failed to recognize, among other things, that no previous court had enforced the Emoluments Clauses; that no decision had defined what “emoluments” are; that no prior decision had determined that a party can sue directly under the Emoluments Clauses when the constitutional provisions provide no rights and specify no remedies; and that no case had held that a State has standing to sue the President for alleged injury to its proprietary or sovereign interests from a violation of the Emoluments Clauses.”

The Fourth Circuit was particularly harsh with respect to the decision to deny immediate appeal:

“we agree with the President that this is a paradigmatic case for certification [for immediate appeal] and that the district court’s reasons for not certifying its orders were not ‘guided by sound legal principles.’ Halo Elecs., 136 S. Ct. at 1231; see also Mohawk, 558 U.S. at 110–11. The court’s refusal to certify therefore amounted to a clear abuse of discretion.”

Confronted with an identical issue, the D.C. Circuit had to choose between agreeing with the Fourth Circuit (as to the immediately appeal right), or creating a stark circuit conflict that would go to the Supreme Court immediately. It chose the only rational path. (BTW, I do not put it by the DC Circuit to ultimately rule the other way on the substantive questions, and to do so in a manner designed to make a Supreme Court petition hard.)

Certainly, if there’s a clause in the Constitution barring an act by an elected official then someone must have standing to enforce it. The authors of the Constitution almost certainly did not intend such prohibitions to be unenforceable.

I think any citizen should be able to raise a constitutional objection to a government act because every citizen has an interest in maintaining a republican form of government, and that interest is harmed whenever government escapes the confines of the Constitution.

However, in this situation, I don’t believe monies earned through business dealings with foreign governments are “emoluments,” esp. when the business was established before taking office (indeed, before becoming a candidate). The entire clause is meant to prevent bribery and gaining influence through the giving of unearned gifts of various sorts. Concerning the president’s legitimate business dealings, the presence of a quid pro quo would be necessary to establish bribery, and not merely the acceptance of payment for services rendered.

Some years ago an elected official in this state (Washington) accepted a title of nobility (I do not recall which official was involved). His office claimed the Constitution’s prohibition on such acceptance didn’t apply because he wasn’t “enriched” by the title, therefore he didn’t need the consent of Congress to accept it. But the idea is to prevent the influence that can be gained not just via payola, but by stroking the ego too. The Constitution requires the consent of Congress to accept a title of nobility, and is silent on whether or not the grantee needs to be “enriched” in order for the provision to apply.

    Occasional Thinker in reply to DaveGinOly. | July 23, 2019 at 8:25 am

    ” The entire clause is meant to prevent bribery and gaining influence through the giving of unearned gifts of various sorts.”

    Like a Nobel Prize.

    Milhouse in reply to DaveGinOly. | July 23, 2019 at 9:40 am

    Certainly, if there’s a clause in the Constitution barring an act by an elected official then someone must have standing to enforce it. The authors of the Constitution almost certainly did not intend such prohibitions to be unenforceable.

    That’s not clear at all. There are many clauses in the constitution that the courts cannot enforce, because they’re a matter for the political branches. For instance, the republican guarantee clause is not justiciable. If a state does not have a republican form of government, it’s up to the president to decide whether to send the armed forces in and remove the government, and it’s up to congress whether to seat the representatives and senators sent by the state government. No court has the authority to intervene.

    In particular, forget the foreign emoluments clause, which doesn’t apply to the president; let’s consider the state emoluments clause, which explicitly does. Suppose a president were to break it, the only remedy is for congress to impeach and remove him. If it doesn’t want to do that, then he gets away with it.

    I think any citizen should be able to raise a constitutional objection to a government act because every citizen has an interest in maintaining a republican form of government, and that interest is harmed whenever government escapes the confines of the Constitution.

    No. A thousand times no. That destroys the entire concept of standing. You might as well say that everyone should be able to sue anyone for anything, because everyone has an interest in the law being obeyed and justice being done.

    Like a Nobel Prize.

    The bodies that award the various Nobel prizes are not government bodies. In particular the Norwegian Nobel Committee is a private body, even though its members are appointed by the Norwegian parliament. So even someone actually holding an office under the united states would be able to accept a Nobel price without Congress’s permission.

It is unfortunate that President Trump didn’t do more to separate himself from his businesses

You mean, like the way George Washington didn’t sell Mount Vernon, or Jefferson didn’t divest himself of Monticello? Both were big businesses, even if Jefferson’s was most notable for losing money.

“Two months ago, Harvard Law Professor and fiercely anti-Trump pundit Laurence Tribe…”

The value of a Harvard education: Being wrong about everything.

Tribe has made himself insane by abandoning his legal occupation and assuming a political preoccupation. A guaranteed way to die miserable.

The Department of Justice should take steps to revoke United States District Court Judge Peter J. Messitte senior status for failure to serve on good behavior.

Federal Judges don’t serve for life. They serve “on good behavior“. Allowing a political lawsuit that makes baseless claims to move forward is not good behavior.

District Judges will continue to flout the law until penalties are imposed. District Court Judges are not to use the term Democrats use before they are about to go after someone – above the law

    Milhouse in reply to dystopia. | July 23, 2019 at 9:47 am

    Good behavior is determined by a majority of the house and two thirds of the senate. And it’s been accepted for over 200 years that bad behavior cannot include the decisions a judge makes, no matter how much congress may disagree with them.

The presidency is not an Office of Profit or Trust under the United States. Wherever that term is used in the constitution it means someone appointed by the president and confirmed by the senate. The biggest proof that the clause doesn’t apply to the president is that George Washington didn’t bother asking congress’s permission to accept valuable gifts from foreign governments, and nobody in congress said a word about it. Had the clause been understood then as so many people seem to understand it now, there’s no way congress would have allowed Washington to violate it so openly. There would have been a resolution preemptively and pointedly giving him the permission that he had not sought.

It is unfortunate that President Trump didn’t voluntarily do more to distance himself from his businesses

No.
One thousand times no.
What is unfortunate is to see anyone, ANY.ONE., entertain this idea, try to advance it, and try to use the judicial power to enforce it, that a person has to choose between being President of the United States, or keeping his or her business.
This is an outrageous idiocy, worthy of the tar and feathers treatment.

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