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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