Law Profs Sue Trump, Alleging Violation of the Emoluments Clause

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in Asia researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.

Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit watchdog group, filed suit yesterday in federal district court in Manhattan, charging that Trump violated the emoluments clause of the US Constitution (and continues to violate same) by allowing his businesses — including hotels– to accept payments from foreign governments. The complaint can be found here. In this action, CREW is represented by leading constitutional and ethics lawyers, including CREW’s board chair and vice-chair Norman Eisen and Richard Painter– the top ethics lawyers for the last two presidents; constitutional law scholars — Erwin Chemerinsky, Laurence Tribe, and Zephyr Teachout; and constitutional litigator Deepak Gupta.

As I’ve written in a previous post, US Constitution’s Emoluments Clause: a Nothingburger for Trump:

Article 1, Section 9 of that document states that “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.”

The clause, on its face, appears to pose a real problem for President Trump, whose companies continue to do business with foreign governments or entities controlled by them– although Trump’s private lawyer, Sheri Dillon of the law firm, earlier in January disputed this, as reported by Politico in Trump says lawsuit claiming he violated the Constitution is ‘without merit’, saying:

“The Constitution does not require President-elect Trump to do anything here,” Dillon said. “Paying for a hotel room is not a gift or a present and it has nothing to do with an office. It’s not an emolument.”

Trump had promised to address the problem of conflicts of interest between his business operations and his role as President. In a January 11 press conference, Trump outlined a plan to transfer leadership and management of the Trump Organization over to his sons Eric Trump and Donald Trump Jr., as well as a longtime company executive. This stands in contrast to other Presidents and cabinet officers, who’ve customarily transferred their assets to some form of blind trust.

Trump neither relinquished ownership of his businesses nor did he establish a blind trust. It would be extremely difficult for Trump to set up such a trust, as his holdings are generally not in the form of paper assets that can be passively managed or easily liquidated. In addition, Trump’s properties in part rely heavily on the use of his name– the Trump brand– to which he is no doubt in many cases contractually bound to continue to use.

Further, Trump has pledged to donate to the US Treasury any profits that arise from activities his businesses conduct with foreign countries, but details– how these profits would be calculated, how they would be monitored– as well as how transparent this process would be, have, to say the least, not been worked out.

The emoluments clause has not been much at issue throughout US history, and there’s scant precedent for how it applies or should be interpreted. Yet while it appears as if Trump might be in a pickle here, as I wrote in my previous post, “Just because something’s unconstitutional, doesn’t mean that any such unconstitutional activity will necessarily be prevented, precluded, or punished.”  One of the threshold issues  that arises in  litigation is who can sue to enforce a right– or, to put it in more formal legal terms, who has standing to sue. Again, I turn to my earlier post, where I addressed the issue of whether a third party– such as an aggrieved private citizen, successfully sue the President for violating the emoluments clause?

This often comes as a surprise to non-lawyers, but the reality is that the US legal system strictly limits who can sue. Persons must have standing in order to bring a suit (as compared to some countries, such as India, and US states, such as California (but only for state law violations), where it is possible to bring a public interest litigation to right an obvious wrong). In US federal court, the authority for bringing a suit comes from Article III of the Constitution. To summarize very broadly an extremely complicated area of the law, to have standing to sue, plaintiffs must be involved in an actual case or controversy– meaning that one cannot bring a case just to determine what a court MIGHT decide. Further, a long series of cases has also established that plaintiffs must have suffered a particularized injury in order to prevail in a lawsuit. This provision prevents someone from bringing a suit arguing, hypothetically, that as a taxpayer, s/he has been harmed by a general policy of the US government.

What does this mean? Well, I would suggest that no one should spend hard-earned money and try to find a lawyer to bring a suit alleging that President Trump has violated the emoluments clause– or any other federal anti-corruption or anti-bribery statute, for that matter– anytime soon. That matter would almost certainly be dismissed on the basis that the plaintiff lacked standing to sue.

Standing and Emoluments Clause

I’ve taken a good hard look at the complaint filed by CREW and their the legal dream team, and note that it skates over extremely thin ice on the standing issue.  Hence, I see no reason to back off on my earlier conclusion that the clause will turn out to be a bit of a nothingburger as far as Trump is concerned. Despite the attention this case has attracted– including a direct response from Trump himself– who yesterday averred that this action is “without merit”— this lawsuit almost certainly will be dismissed, well before it gets anywhere near the United States Supreme Court.

Let me spell out my reasoning. The general test is that to have standing to sue, a plaintiff must show s/he suffered a “concrete and particularized” injury and that a court can remedy that the injury. What injury has CREW suffered, even if we assume for the sake of argument that Trump’s ongoing business operations do indeed violate the emoluments clause? As a Forbes article explains, Why The Constitutional Lawsuit Against Trump Is Likely To Fail:

The U.S. Supreme Court has repeatedly refused to allow citizens to use the courts to reverse government policies they disagree with unless they can also show some sign of tangible injury. Whether it’s environmentalists suing to reverse a regulation they don’t like or alarmed citizens suing to find out if the government’s been snooping on their phone calls, citizens don’t have a case unless they can claim an “injury in fact.” Hypothetical injuries won’t cut it.

If I know that, and Forbes knows that, you can be sure that Tribe et al are well aware of the difficulties of establishing standing in such an action. The CREW complaint rests its standing claim on Havens Realty v. Colman (1982), under which a  a non-profit housing discrimination group (HOME) was allowed to sue a private real estate firm, not on a discrimination claim but on the basis that the real estate firm’s steering practices  impaired HOME’s ability to provide counseling and referral services for low- and moderate-income homeseekers.  The Court determined that “[s]uch concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.”

Over to the CREW complaint:

CREW brings this action to stop and prevent the violations of the Foreign Emoluments Clause that Defendant Donald J. Trump has committed and will commit, which have already injured—and, without a remediable order from this Court, will continue to injure—CREW in the form of a significant diversion and depletion of its time, resources, and efforts. CREW has standing under [Havens] , because there has been a “concrete and demonstrable injury to the organization’s activities[,] with the consequent drain on the organization’s resources.” [citation omitted] CREW seeks declaratory relief determining the meaning of the Foreign Emoluments Clause and stating that Defendant’s present and future conduct violates this provision, as well as injunctive relief ordering Defendant to refrain from violating the Foreign Emoluments Clause (complaint, p. 2).

The Forbes piece calls this rationale for establishing standing “a bold attempt, given the Supreme Court’s repeated decisions since Havens Realty rejecting attempts to sue the government without a specific injury.” I’d describe it as a Hail Mary pass. The key question: What’s the injury to CREW if Trump is indeed violating the emoluments clause? Over to Forbes again:

CREW relies on the Havens argument that it was forced to expend resources protecting the public against Trump’s conflicts but that’s unlikely to fly. Other activists will no doubt come up with some claim that attempts to get over the very high hurdle in front of private citizens suing to change government policy. Maybe they will include a rival real-estate firm or hotelier who says foreign tenants skipped over their properties to get in Trump buildings. But judges aren’t stupid: They’ll look at CREW the way the Supreme Court looked at Amnesty International when the human-rights group sued James Clapper, then the Director of National Intelligence, over what activists suspected to be wholesale surveillance of foreign communications.

The group claimed it was spending extra money trying to safeguard its communications and it was unfair to say they didn’t have the evidence of surveillance since it was guarded by the secrecy they were seeking to penetrate with their lawsuit. But the Supreme Court tossed out the case, saying Amnesty didn’t have standing to sue. What if nobody has standing to sue? The court cited an earlier decision: “‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’”

(As an aside, sometimes, a federal statute creates an explicit private right of action to enforce some constitutional provision. Yet Congress has never bothered to pass a federal statute that expressly creates a private right of action for violating the emoluments clause, as The Wall Street Journal has reported.)

Ulterior Motive: Make Trump Release His Tax Returns

While CREW almost certainly won’t prevail in this lawsuit, one other motive for filing the suit may be to try and get Trump’s tax returns released a part of the “discovery” process,  where a defendant is required to turn over documents that are relevant to the plaintiff’s legal claim. CREW will almost certainly argue that it is necessary to get access to extensive Trump financial records– including tax returns– in order to unravel the web of complex financial relationships that would show violations of the emoluments clause. Yet if the suit is dismissed at an early stage in the litigation process, extensive discovery will be avoided, and the tax returns will remain locked away from public scrutiny.

Is This the Best Democrats Can Come Up With?

Given the difficulty of established standing– which I believe to be very remote indeed– I wonder whether this is actually a wise allocation of opposition resources?  At one level, this suit can be seen as just the latest example of Democratic party virtue-signalling. The complaint explores the scope of Trump’s business interests, and teases out numerous potential conflicts.

CREW has been working the ethics beat for more than a decade, but over the last couple of years, its reputation has suffered as it has shifted tack to pursue a more partisan, Democratic agenda, as Bloomberg reports :

For more than a decade, Citizens for Responsibility and Ethics in Washington, or CREW, has scrutinized and assailed federal agencies and politicians from both parties to root out unethical behavior in government. Over the past two years, however, some of the group’s most influential work has been quietly dropped.

Annual rankings of the “most corrupt” members of Congress and a bi-annual list of the “worst” governors have stopped. A pipeline of in-depth reports on issues ranging from financial markets to timber-industry lobbying has gone dry. The group walked away from a spat over Hillary Clinton’s treatment of e-mails as secretary of state, even after an Inspector General found that CREW’s public records request had been improperly denied.

The reason? Longstanding Naked Capitalism readers will not be surprised that CREW “until recently was controlled by David Brock, a Democratic Party operative and fervent supporter of Hillary Clinton’s campaign,”  as reported by the New York Times, in Foreign Payments to Trump Firms Violate Constitution, Suit Will Claim. And the self-explanatory headline to the Bloomberg article quoted above makes the point crystal clear:  CREW’s Watchdog Status Fades After Arrival of Democrat David Brock.

I’m surprised that months after the shock result of losing the presidential election– to a character regarded as a beyond-the-pale buffoon– and seeing solid Republican majorities installed in each house of Congress– the Democrats are still faffing around on designing their responses. All the efforts deployed in subverting the Electoral College, or blaming the Russians for Hillary’s loss, might, I would be suggest, have been better directed to accepting the debacle that their misguided electoral strategy had created, turning the page, and focussing on what to do next.

Why are Democrats not marshalling their resources to shape the way Trump governs– such as by mounting concerted campaigns to block the worst of Trump’s Cabinet picks?  And further, why are Democrats not conducting a thoughtful post mortem, with the intention of designing a strategy to make the 2016 electoral outcome a low point, rather than a harbinger of further disasters?

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    1. sgt_doom

      We just had a president who lied again and again before the American people, falsely proclaiming that the banksters broke no laws in their foreclosures and, of course, issued a presidential directive (back in either 2010 or 2012) granting them immunity from prosecution (kind of a contradiction, that).

      Of course, as anyone who has seriously been studying this issue realizes, or read David Dayen’s outstanding book, Chain of Title, the entire process was crooked from the get-go: both with fundamentally violating the Law of Fraudulent Conveyance, extant in most states, and definitely in the state of New York (the Banksters’ best buddy, Eric Holder, even actually had the audacity to invoke that law against some small time player when he was Obama’s A.G.), and going on with violation of contractual law, since the PSAs (Pooling and Servicing Agreement) were violated each and every time, as each and every time they split up the note from the mortgage paper, etc. Then there were millions upon millions of felonies committed each and every time they filed false affidavits (robo-signing), false court documents, false public notarizations, etc., etc., etc., and all this invalidated their tax agreements and status (REMICs) therefore millions of tax violations were committed as well!

      Yet did CREW move on this; if so, I don’t recall it, just some small stuff they focused on.

  1. cocomaan

    Even if you wanted to chase the enoulment problem beyond mere virtue signaling, wouldn’t it be worth it to file a lawsuit after something actually happened? Why not lure Trump into a false sense of security, make him feel that he isn’t being watched, so that he or one of his acts wrongly?

    Use all that effort you’re spending on a lawsuit that has no chance to follow Ivanka or Jared around and determining what they are doing. Or how about Betsy DeVos, who didn’t file her ethics paperwork correctly with the subcommittee? Come on.

    I feel that, by filing this lawsuit, CREW has more or less poisoned the well for enoulment cases.

    1. jrs

      They are starting a lawsuit to try to get at information in the first place probably. At this point there is hardly proof of much, but this is because we don’t know what we don’t know.

  2. MyLessThanPrimeBeef

    What about his the hotel stocks in his 401k plan?

    His, or any senator’s 401k.

    Those hotels receive presents all the time from foreign governments.

    And one more question – can his, er, foundation (or foundations, as he can set up new ones all the time), or those of his Secretaries, accept gifts or donations from abroad?

  3. Arizona Slim

    Here’s Arizona Slim’s guide to effective opposition:

    1. I disagree with Trump’s policy on [name of issue] because [state your reason(s)].
    2. This is what I propose instead. [Summary of your proposal].
    3. Here’s my action plan for making it happen. [Summary of your plan.]
    4. Join me!

    1. MyLessThanPrimeBeef

      A theory that explains everything explains nothing.

      For the media: If your theory is that everything Trump does is wrong, you have a theory of nothing.

      1. Seamus Padraig

        Actually, it explains a lot. On most issues, the Democratic Party either has no #2, their #2 is even less popular than Trump’s plan, or else it doesn’t differ much from Trump’s plan at all. That’s why they want to keep their “resistance” campaign against Trump focused on personality rather than policy.

        And in that rare case where they do adopt a popular #2 alternative to Trump’s plan, beware: it could very well be a ruse. Take the DAPL protests, for example. They’ve been going on for months now. Yet, before the election, neither Obama nor Hillary ever spoke out in favor of the Indians, and it was a non-story in the MSM. But now that Trump is on the job, expect to hear lots of crocodile tears from the Democrats, and lots of denunciations of Trump’s “fascism” on the issue.

  4. JTMcPhee

    All this whimsy about corruption and Constitutional constraints assumes that there’s an existing substrate of RuleofLaw ™ that somehow can be invoked and built upon to kick the b@stards to the curb. Anyone think John Roberts and his merry band of black-robed thieves won’t kick any such litigation to the curb, post-haste? Political question, standing, “not a tax,” etc.

    Ah yes, let us follow the Emperor and his court and the congresscritters around, and document what’s in their 401ks and IRAs and offshore invisible holdings… that’s really gonna make a splash. The Empire disdains constraints on looting. And what tools do mopes have to “bring the malefactors to the bar of justice,” again? What is there in “the law” that even can be force-fit to manacle the malefactors?

    Obedience to the law (which itself is subject to modification, interpretation and repeal, and plain old “fokk you, mopes!”) is a burden only applying to the Little People, as remarked in this blog many times.

  5. oho

    The establishment Dems are a party of technocratic pedants while Trump brings a flamethrower to a knife fight.

    good luck profs.

  6. fosforos

    If the suit is “without merit,” it would be because the “emoluments clause” as written applies only to personal “emoluments,” while Trump’s “companies” are all in *corporate* form. So why shouldn’t it be dismissed “on the merits” without “standing” ever needing to be resolved?

    1. Old Jake

      I suspect standing is tested before merit comes into play, so the merits of the case will never be examined.

  7. JohnnyGL

    “Why are Democrats not marshalling their resources to shape the way Trump governs– such as by mounting concerted campaigns to block the worst of Trump’s Cabinet picks?” – because they don’t mind them, and would like to use them as campaign propaganda in next election cycle.

    “And further, why are Democrats not conducting a thoughtful post mortem, with the intention of designing a strategy to make the 2016 electoral outcome a low point, rather than a harbinger of further disasters?” – As explained by Nancy Pelosi in a December interview, they don’t see any kind of secular change or watershed events going on, they see election cycles like the tidal ebbs and flows. When the tide goes out, just wait for it to come back in.

    1. Eureka Springs

      1. Keeping powder dry, no doubt, and…. bipartisainship!

      2. Haven’t you heard, the Third Way is conducting post mortem/ fix it polls.

    2. Arizona Slim

      I’m visualizing the tides in Nova Scotia’s Bay of Fundy. To say the least, they’re extreme.

      And I think that Pelosi and the Ds just got walloped by a Fundy-like high tide.

  8. craazyman

    Is this a sleeping pill or what? You get like half way (or to be honest, a few paragraphs) and you’re like “who the f—-k cares?”

    Actually the suit is not without merit. It would make a good sleeping pill if somebody can stand to read any documents from it, and it can tie up some hapless court’s time paid for by taxpayers. So if somebody wants to fleece the U.S. public, then this has merit.

    Leave the dude alone already and let him try to fix what the Liberulls broke. Oh man, I’m beginning to think radio host Michael Savage is right — liberalism is a mental disorder. Better late than never I guess.

  9. Jim Haygood

    Not that “everybody does it” is any defense, but Hillary Clinton massively violated the emoluments clause while serving as Secretary of State by accepting donations from foreign governments to the Clinton Foundation, which in turn paid a salary to her daughter Chelsea.

    And nothing happened. It was “all legal,” as far as Attorney Gerbil Low-renta Lynch was concerned.

    Not only will the court be reflexively inclined to punt, but also they will use lack of standing to do so, exactly as Jerri-Lynn says. DISmissed!

    1. steelhead23

      Actually, I believe such a case would be far stronger than the one against Trump. Every NGO doing similar work was demonstrably injured by that game. So, hey CREW, you want to eviscerate unethical government employees, here’s your chance.

  10. moeglicherweise

    Human citizens may not sue over claimed violations of the 4th amendment or emolument clause, because they lack standing, even though whether or not they have standing is knowable. The cases involve real past events for which evidence may come out in discovery.
    Corporate citizens may (in some cases) sue the public for recompense because they claim a certain law reduces their unknowable future earnings. This logic requires invoking counterfactual events, i.e., events of an alternate universe where the law did not pass.

    The aggregate legal system that got us to this point claims the first example is hypothetical, even though it involves knowable past events, and the second example is not hypothetical, even though it involves unknowable future events (from another universe). Sounds very meta-physical and science-fictioney.

  11. reslez

    In November the NYT published an opinion piece by Luigi Zingales titled “The Right Way to Resist Trump”. It was born from the author’s experience opposing Berlusconi in Italy. Berlusconi and Trump have several instructive parallels. I suspect that the CREW lawsuit falls into the same trap of opposing Trump on general, personality-laden grounds as opposed to specific policy issues or law violations. This will feed into Trump’s popularity with his base and backfire when clear and substantive violations occur. When that happens his base will dismiss the criticism as yet more hysterics from the left.

    Mr. Berlusconi was able to govern Italy for as long as he did mostly thanks to the incompetence of his opposition. It was so rabidly obsessed with his personality that any substantive political debate disappeared; it focused only on personal attacks, the effect of which was to increase Mr. Berlusconi’s popularity. His secret was an ability to set off a Pavlovian reaction among his leftist opponents, which engendered instantaneous sympathy in most moderate voters.

    We saw this dynamic during the presidential campaign. Hillary Clinton was so focused on explaining how bad Mr. Trump was that she too often didn’t promote her own ideas, to make the positive case for voting for her. The news media was so intent on ridiculing Mr. Trump’s behavior that it ended up providing him with free advertising. …

    The Italian experience provides a blueprint for how to defeat Mr. Trump. Only two men in Italy have won an electoral competition against Mr. Berlusconi: Romano Prodi and the current prime minister, Matteo Renzi (albeit only in a 2014 European election). Both of them treated Mr. Berlusconi as an ordinary opponent. They focused on the issues, not on his character.

    [A]n opposition focused on personality would crown Mr. Trump as the people’s leader of the fight against the Washington caste. It would also weaken the opposition voice on the issues, where it is important to conduct a battle of principles.

    Democrats should also offer Mr. Trump help against the Republican establishment, an offer that would reveal whether his populism is empty language or a real position.

    Please read the article for the rest (it isn’t very long). Jimmy Dore covered this in his radio show as well.

  12. clarky90

    The “tell” is in the name itself.

    Citizens for Responsibility and Ethics in Washington (CREW)

    I interpret the spirit of “CREW” (hat tip NC commentariat) as the complete opposite of its name- in reality- “One More of George Soros’ Trotskyist Front Organizations” (OMG-STFO!)

  13. Knot Galt

    Drip. Drip. Drip.

    Had HRC won the presidency, the plan from the Republicans was to further obstruct her presidency by using the courts. Because the democrats were counting their chickens before they hatched; they themselves did not develop any strategy to slow down Trump.

    So they are starting from scratch and flailing about. Why is this the status quo with Democrats? I can see why some people see “liberals” as being weak. Stupid is as stupid does?

  14. alex morfesis

    The “lawsuit” is just a fund raising and awareness tool(email hoovering)…trumps activities are fairly transparentable if one bothered to spend the resources to track ucc filings on his entities and make simple county recorder searches for debts secured…buuuutttt…that would take work…

  15. RUKidding

    This is a big nothingburger. Good post & commentary. I heard about CREW fixing to do this very important thing, and my response (not liking to imitate – shudder – Darth Cheney, but… if shoe fits): SO?

    As someone pointed out up above, as usual, utterly worthless vapid stupid idiotic Democrats have NO PLAN evah under any circumstance. And hence the usual D flail, which translates rapidly into D FAIL. Thanks, Obama!

    And so on. There’s no point in even passing the popcorn on this one. zzzzzzzzzzzzzzzzzzzzz

  16. Kim Kaufman

    Another point of view – from Bob Bauer, who was counsel to Obama for the first couple of years.

    The CREW “Emoluments” Suit and the Congress

    Also, I heard on the radio yesterday: a likely entity who would have standing would be a competitor hotel who claims to be unfairly disadvantaged by the obvious favortism given to President Trump’s hotel by those trying to curry favor. Maybe some brave hotelier will step up?

    1. MyLessThanPrimeBeef

      On the other hand, over 50% Americans might never want to stay in a Trump hotel again, favoring, in this case, his competitors.

      I also think the person trying to curry favor would have to stay in the most expensive penthouse suite more than 365 days a year, to really impress Trump or his accountant….unless you’re a big tour operator who can throw a lot of packaged tour business Trump’s way.

    2. Jerri-Lynn Scofield Post author

      Good point about competitor standing– and one I agree w/ and discussed at greater length in my earlier post on this issue:

      I think a lawsuit brought by such a potential plaintiff would have a greater chance of success– but the remedy would be limited, e.g., rescission of a particular contract award. Space considerations led me to decide not to repeat that earlier discussion here.

    3. Seamus Padraig

      If you stay at his hotel, you’re paying the hotel a fee for occupying one of their rooms. That’s a normal business transaction, not an ’emolument’, which is simply a gift. Moreover, Trump’s business is a tightly-held corporation–legally, a separate entity from Mr. Trump himself.

  17. Stupendous Man - Defender of Liberty, Foe of Tyranny

    “While the Constitution of the United States divides all power conferred upon [112 S.Ct. 2136]
    the Federal Government into “legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1,
    and “[t]he judicial Power,” Art. III, § 1, it does not attempt to define those terms. To be sure, it limits
    the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear
    the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the
    Smoot-Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation
    of powers depends largely upon common understanding of what activities are appropriate to legislatures, toexecutives, and to courts. In The Federalist No. 48, Madison expressed the view that
    [i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a
    particular measure will, or will not, extend beyond the legislative sphere,
    whereas “the executive power [is] restrained within a narrower compass and . . . more simple
    in its nature,” and “the judiciary [is] described by landmarks still less uncertain.” The Federalist No.
    48, p. 256 (Carey and McClellan eds.1990). One of those landmarks, setting apart the “Cases”
    and “Controversies” that are of the justiciable sort referred to in Article III — “serv[ing] to identify
    those disputes which are appropriately resolved through the judicial process,” Whitmore v.
    Arkansas, 495 U.S. 149, 155 (1990) — is the doctrine of standing. Though some of its elements
    express merely prudential considerations that are part of judicial self-government, the core
    component of standing is an essential and unchanging part of the case-or-controversy
    requirement of Article III. See, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984).

    Over the years, our cases have established that the irreducible constitutional minimum of
    standing contains three elements: first, the plaintiff must have suffered an “injury in fact” — an
    invasion of a legally-protected interest which is (a) concrete and particularized, see id. at 756;
    Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16
    (1972);[1] and (b) “actual or imminent, not `conjectural’ or `hypothetical,'” Whitmore, supra, 495
    U.S. at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Second, there must be a
    causal connection between the injury and the conduct complained of — the injury has to be
    fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the
    independent action of some third party not before the court. Simon v. Eastern Kentucky Welfare
    Rights Org., 426 U.S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely
    “speculative,” that the injury will be “redressed by a favorable decision.” Id. at 38, 43.”

    The above comes from Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

    I will be very surprised if this suit isn’t dismissed for lack of standing.

  18. Franklin M Roth

    Someone or some organization or institution should have the right to sue on behalf of the Constitution of the United States in defense of its provisions. After all, what is the Emoluments Clause for? It’s there to protect the American polity from undue influence of foreign states on a branch of US government, period. Here, we want protection from the President’s actions being affected by his business interests in foreign countries. it is logical that no specific “harm” need be shown, just a violation of the Constitution’s provisions, which is harm enough to all of us as the body politic.

  19. Cody DeMaurier

    Many thanks, Ms. Scofield for one of the few-and-far-between reasonable responses to the moment. I am amazed at how reasonable folks have been thrown so far off kilter, love or hate Trump.

    You’ve made the most important and logical question from this event as an exemplar: months later after losing, cannot there be better use of still significant resources and precious time?!!!

    I am quite amazed at how one figure has caused the very people who claim a corner on “smart” and on “humanity” have responded with such an extended whining, tinged by violence and the threat of violence.

    Incredible to see the media publicly forgo the integrity of their craft and, in CREW’s case publicly forgo objective criticism and progressive action on non-partisan grounds. To view absolutely everything through the “I hate Trump” lens, means that we lose any proper counterweight to the President.

    I am not at all displeased that he has disrupted an implicit agreement between the usual winners in a debt-driven economy to now shift to a productivity view, which in the short term can indeed justify rebuilding national capacity and using the singular weight (what remains of it) of this country to earn respect from both friends and adversaries.

    Trump seems to be the return to real assets and productivity perspective that we have needed, instead of waiting on the awful shoe to drop from crazy non-productive dithering in paper with value way to far from the real asset. (Seems Janet Yellen may be the same, hinting to opt out of paper and have the fed directly purchase equities.)

    It’s payday someday.

    For the sake of the country, I just wish we could get the so-called ‘smartest’ folks in the room to act like it.

    1. Lambert Strether

      CREW — correct me if I am wrong — has had a good reputation, rather like Media Matters which, although partisan, has to my knowledge not gone into “let’s just make shit up” mode.

      So, CREW and Media Matters are in the part of Brock’s empire that provides cover to his oppo operation with respectability branding. And for whatever reason, Brock decided to redeploy CREW from branding to oppo. Sirota (and Atrios) should take care.

  20. lambert strether

    So the injury is that Brock will have to suck up to more squillionaires to raise funds so CREW can do what it already does, but moreso?

    That strikes me as a little meta. Good thing Larry didn’t get that Supreme Court nomination from Obama, I guess. Such a shame.

    NOTE And why is Teachout getting involved in this? She should know better.

  21. ewmayer

    “CREW brings this action to stop and prevent the violations of the Foreign Emoluments Clause that Defendant Donald J. Trump has committed and will commit, which have already injured—and, without a remediable order from this Court, will continue to injure—CREW in the form of a significant diversion and depletion of its time, resources, and efforts. CREW has standing under [Havens] , because there has been a “concrete and demonstrable injury to the organization’s activities[,] with the consequent drain on the organization’s resources.”

    So their ‘material harm’ argument-of-standing is based on a circular ‘we have been materially harmed because we chose to file a lawsuit over this, and such filing takes time and effort, which constitues harm’ argument? Good luck with that one!

  22. Dwights

    Congress hasn’t acted or even had time to act. CREW didn’t mention in its complaint that Congress has passed the Foreign Gifts and Declarations Act. CREW mentioned Office of Legal Counsel intepretations of this statute in its December 2016 Brookings “white paper,” which invokes the DNC claim of Russian interference in the election as a threat to our national security and independence.

  23. Dwight

    Yes, ewmayer, an absurd argument, and more the offensive for having been made on behalf of a political party that failed in its 8 years of control to staff the federal courts with enough judges to even have time let alone inclination to recognize broader citizen standing for real grievances against governmental and corporate power.

  24. Gaylord

    Dems’ sour grapes are rotting. They’re the new Corporate Party of No, and they’re saying no to their base as much as to the Republicans.

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