By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends most of her time in Asia and is currently 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.
You can virtually always rely on certain Democrats to double down on a losing strategy: in this case, dreaming up grounds for another doomed lawsuit against Trump for violating the U.S. Constitution’s emoluments clause.
The Hill reported yesterday:
Senate Democrats are exploring a lawsuit against President Trump on the grounds that his vast business empire has created conflicts of interest that violate the Constitution.
Now, regular readers are well aware of the conflicts between Trump’s business holdings and the emoluments clause of the U.S. Constitution, which I discussed in two previous posts, US Constitution’s Emoluments Clause: a Nothingburger for Trump (December) and Law Profs Sue Trump, Alleging Violation of the Emoluments Clause (January).
To recap briefly, the emoluments clause– found in Article 1, Section 9 of the Constitution– of that document says:
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.
Indeed, as I first wrote in December, “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.”
And again, permit me to repeat myself : “Just because something’s unconstitutional, doesn’t mean that any such unconstitutional activity will necessarily be prevented, precluded, or punished.”
Why? Well, the short answer is that the Constitution is quite specific in outlining remedies for violations. In the case of the emoluments clause, the remedy would be impeachment. In my December post, I discussed the basics of impeachment, because at that time, many otherwise sane and sensible people were suggesting that was a real possibility– despite the majorities Republicans hold in both houses of Congress.
Now, I haven’t made any scientific survey of where opinion stands on the likelihood of impeachment, but it seems to me that calls for same have diminished as it dawned on those braying for Trump’s removal that to succeed in that project that would leave us with a President Pence.
As for congressional Republicans, who by virtue of controlling both houses of Congress would call the shots on impeachment, they’re unlikely to abandon Trump as long as he continues to enjoy high levels of support among those who voted for him. That remains the case. There seems to be very little buyer’s remorse here. Instead, it’s actually some Hillary voters who regret the ballots they cast, as the Washington Post reported earlier this week in Trump voters don’t have buyer’s remorse. But some Hillary Clinton voters do.
How About a Lawsuit?
What about that all-American remedy: filing a lawsuit? Or, when all else fails, Sue! Could any third party– a group of citizens, for example– or those allegedly harmed by Tump’s conflicts, prevail in a lawsuit against Trump for violating the emoluments clause?
Quoting from my December post:
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 … 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.
Legal Dream Team Signs on to Sue Trump
As I discussed further in my January post, in spite of the well-known and obvious standing problems, Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit watchdog group, filing a federal lawsuit in January, alleging that Trump violated the emoluments clause by allowing his businesses to accept payments from foreign governments.
I won’t reprise the extensive arguments I made then here, as interested readers can easily read the post if they so desire. The relevant takeaway from that January post is this:
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.
I continue to stand by that conclusion, even though last week, two additional plaintiffs joined the CREW suit, in an obvious effort to address the standing issue. I still don’t think this is going to fly, a conclusion I share with Jonathan Adler, who wrote an opinion piece in The Washington Post, Why CREW’s emoluments clause lawsuit against President Trump still has standing problems making exactly that point:
This week, CREW announced additional plaintiffs had joined the suit, bolstering its claim for standing. As detailed in the amended complaint, CREW has been joined by an association of restaurants and restaurant workers and an individual who books events at hotels that compete with Trump-branded properties. These additions will certainly help CREW make the case for standing, but is it enough? I’m not so sure. As I see it, serious standing problems remain, and there is also the possibility that courts will conclude the emoluments clause claims raise nonjusticiable Political Questions.
Democrats Wasting Time
These concerns have failed to deter Senate Democrats from chasing this bandwagon.
“[Senator Dianne] Feinstein said during a town hall last week that her staff is “looking very closely” at the Emoluments Clause, “ according to The Hill. Doesn’t her staff have better things to do?
I can’t tell from The Hill account whether they believe this is a sound strategy, or is it just something they endorse to let their base know that they are simply shocked, shocked, by Trump’s conflicts? Turning to that account again:
In addition to a potential lawsuit, Feinstein said Democrats are examining whether Congress could deny payments for certain White House expenditures, including trips for Trump’s sons.
“It’s being done by people who really have a great sense of ethics,” she said. “We’re working on all of these to get good solid legal answers.”
I thought readers would enjoy that line about ethics– particularly in a week in which both Obamas are rushing to improve the family finances by cashing in on lucrative speaking engagements, as The Washington Post reports in The Obamas face the paid-speaking circuit — and all the questions that come with it.
And it seems the payments issue Feinstein raises is equally misjudged. Now just for the moment, allow me to assume that minority Democrats could find a way to withhold or block payments for the travel costs of Trump’s sons, does anyone honestly think this would change anything? We may not know Trump’s exact net worth, but even if somehow these travel expenses are blocked, the extended Tump family clearly has access to beaucoup bucks, and I don’t think Trump’s sons will have to cobble together family frequent flyer points in order to finance necessary travel.
I want to be careful to award credit for this lawsuit strategy to where it’s due: apparently it’s the brainchild of Senator Richard Blumenthal of Connecticut. But Senator Blumenthal’s potential lawsuit faces a similar standing obstacle that will likely torpedo the CREW lawsuit. This is arguably even more insurmountable than that faced by private plaintiffs, since the Constitution explicitly provides that impeachment is the remedy for this alleged emoluments clause violation– and as I said above, in the case of impeachment, it’s clear that Congress calls the shots. Unlike a taxpayer who doesn’t like a Trump policy– or another third party with some stronger basis for a suit– Congress isn’t exactly powerless here. If enough members of Congress believe Trump has violated the emoluments clause, they can impeach him.
Let me return one last time to The Hill article again:
[Senator Ben Cardin] confirmed Blumenthal has pitched the idea of a lawsuit, but stressed that no decision has been made.
“I’m yielding to him on the legal issues. I’m not a constitutional scholar on standing, so if he can figure out a way to do it, I’m rooting for him,” he said.
Good luck with that then.