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Senate Democrats Discuss Doubling Down on Losing Strategy of Suing Trump on Emoluments

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.

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33 comments

  1. Moneta

    One can’t forget that those who get into those positions typically have a character trait that helped them get there: persistence. The conviction that one never quits and that quitting is failure.

    The problem with most people is this strange belief that anyone is able to change hats multiple times a day.

  2. divadab

    These critters should consider their own glass houses – consider the hundreds of millions received by the Clinton Foundation from foreign potentates and kings in the Gulf States. Is this not a clear violation of the emoluments clause?

    How have we come to the point where our leaders are grifters who lie as a matter of habit? Whose sole job is to mislead in order to keep the bribes flowing. It’s a filthy mess.

    1. Disturbed Voter

      Crime and treason, all the way down. But then that is what America is based on. We are simply more aware of it now, and the perps are more brazen.

  3. Arizona Slim

    If you remember nothing else from this post, remember this:

    Persons must have standing in order to bring a suit.

      1. diptherio

        Trying to think of a good “standing trees” witticism, but it’s escaping me…of course, reality takes the cake, as the Standing of Trees article is written by a guy named Stone.

        1. Jerri-Lynn Scofield Post author

          And recall this recent development:India court gives sacred Ganges and Yamuna rivers human status The article mentions that NZ had previously– and also recently–made a similar decision.

          (Just as an aside, IIRC standing doesn’t serve as the same obstacle in India as in the US, because India allows for public interest litigation, which is more or less exactly as described, i.e., a lawsuit brought on behalf of the public.)

  4. PKMKII

    Methinks the Senate Dems know they aren’t going to get Trump impeached with these emoluments lawsuits. They just want to get them to a high enough court to get significant press coverage, make a public airing of their grievances. Creating fodder to smear Trump and his apologists with in future elections. When the lawsuit fails, well they can blame it on a “politicized” court. It’s all about the horse race.

    1. diptherio

      ding, ding! It’s all red meat for the base. It’s always nice, as a politician, when you can find a cause that’s all sound and fury, signifying nothing. You get to look righteous without taking any risks, since the outcome known in advance. They know for a fact they won’t end up with President Pence, so they’re safe to go full bore after Trump. Also keeps questions from being asked about Medicare-For-All, Libyan slave markets and Mrs. Clinton’s responsibility for that.

  5. ebr

    I can accept all this sound & fury over emoluments as a way to rally the base, but I don’t see the Democrats moving much beyond that base either. How many tiresome conversations I have had when someone relates to me the latest Trump outrage & just quietly sort of nod my way through the talk until I can nope my way out of it. Here in the Midwest I keep watching the protests — the march routes go right past my front window — and I see a lot of witty ‘we hate Trump’ type placards, and almost no “fight for fifteen” or “black lives matter” placards. The crowds are almost wholly middle class white, not one farmer or trucker hat to be seen, a handful of protestors who might be Mexican holding placards promoting the dreamer act. It is all very dispiriting, but I know better than to tell my friends & co-workers these thoughts because hey, who wants to be the funkiller.
    All that said, if anyone really wants to move beyond ‘rallying the base’ has anyone been to one of the Sander’s Unity Tour stops? Is the demographic & crowd that different? Are new people coming into the Democratic Party? Or are we just rallying the base still?
    Aside: the emoluments clause legal case will go nowhere, but if anyone really wants to hit Trump, hit the brand. It pains me to say that some people out here do see the Trump brand as aspirational, but everyone loves a bit of glamor. If the Trump family left Washington poorer & hated, well it might not save the Republic, but it would give me that — what is the German word for delight in the misfortune of others? – that feeling.

    1. sleepy

      The dems lazily think that the Trump-is-a-monster theme will automatically create a default electoral windfall next go-around, that there is no need to campaign on any progressive policy positions.

      Just pound Trump til the right sort of people can get back in office seems to be the ticket.

  6. bmeisen

    “… the dust that Pancho bit down south, ended up in Lefty’s mouth.”

    Impeachers would do better to wait until Trump starts building the Great Fence. There’s a good chance that he’ll loose track of what his relatives are up to down there on the Rio Grande.

  7. Optimader

    Its not about winning policy, its about staying in the game enough to participate in its monetization. That is mostly accomplished with emotive chimerical initatives that ultimately fizzle out.
    Actually pursuing a meaningful agenda risks being flanked and getting politically gored.

  8. Steve in CT

    Remember Dick Blumenthal was Attorney General in CT before he became Senator. In that position he instituted various lawsuits that had similar issues. His most famous was suing the Big East Conference for removing UCONN as a member. He made big publicity when he announced the suit but then any progress or outcome was lost in the mist. It was a joke and most people realized it. He was always pursuing publicity with his lawsuits big or small. Since he left the AG’s office, publicity from the office has fallen way off.

    It does not surprise me that he would be the advocate for suing Trump. If only he could be the lawyer too.

  9. RUKidding

    They’re just doing this to pretend to their base that they’re “serious people” and “really DOING something” about Trump.

    IOW, it’s window dressing. Meaningless. Trump knows it, too.

  10. Pat

    Agree it is window dressing for the rubes, in this case upper class largely white professionals who are the only base they have left.

    But just a bit of trivia, if Congress does decide to reject paying for Trump family members travel expenses they will not be charged the actual cost but the price of a first class ticket on a commercial flight. Something I learned when reading about how much the Obamas reimbursed the government for a trip Michelle and the girls took. So the Trumps can more than afford the punishment the Democrats are seeking to inflict on them for not being the grifters of choice.

  11. lyman alpha blob

    I’m no lawyer, but on top of your very good arguments as to why this is a waste of time, I’m interested to see if there’s an even simpler reason. All the lawyers, please feel free to let me know why the following doesn’t hold up.

    Trump’s business agreements would seem to fit the definition of an emolument, however the clause states that govt. officials cannot receive them “from any King, Prince, or foreign State”. We don’t know all of his business arrangements but it seems reasonable to assume that any compensation Trump gets would be from a foreign business which is not on the list of proscribed entities.

    And even if Trump did receive compensation from a government directly, couldn’t he simply argue that it’s Donald J. Trump who is the President, but the compensation was received by Trump Co LLC or whatever it is he calls and particular business entity, which is a completely separate individual? I don’t particularly care for that argument, but I wasn’t on the Supreme Court when it decided Citizens United either.

    If we wanted to actually enforce this clause, then any numbers of Congresspeople would be currently clenching their butt cheeks right now, hoping the hammer wouldn’t fall on them. And especially one Hillary Clinton, whose foundation did accept compensation from Kings, Princes and foreign States while she held office. Maybe she could argue that the Foundation was an individual separate from her person too, but a potential lawsuit against her would seem stronger than that against Trump. Perhaps there are some Yemeni-Americans who have standing to argue that the arms shipped to Saudi Arabia and later dropped on Yemen after the Saudis filled up the Foundation’s coffers caused them harm due to the destruction of life and/or property in that country.

  12. Kim Kaufman

    ““[Senator Dianne] Feinstein said during a town hall last week that her staff is “looking very closely” at the Emoluments Clause,”

    I wish that hag would have her staff “look very closely” at single payer health care. And also say that she will retire at the end of this term.

  13. Ron Sands

    Is the principle at stake worth nothing, even if it costs time and money to establish? If the lawsuit can open the door to seeing Pres. Trump’s tax returns so as to prove the alleged conflicts of interest, wouldn’t that be a useful disinfectant to spray on his administration? And, there would be political benefits to wield in upcoming elections. Sure, if the standing issue is so clearly flawed and, therefore, the suits are frivolous, then maybe they should not have been brought. But if the standing argument has any legs, then it seems to me the suits should be pursued, just maybe not at state or federal taxpayer expense; however, if private citizens want to foot the bill, more power to them. And to us.

    1. Jerri-Lynn Scofield Post author

      Yes, he’s part of the legal dream team– which includes Larry Tribe and Zephyr Teachout– who are representing CREW in the action I mention above (and discuss at length in my January post).

      1. run75441

        Jerri:

        A good person to have on your side. If you have never seen him, one would not thing he is the constitutional authority that he is . A quiet unimposing man. I have seen people come to 6th District COA to hear him speak in court.

        I must have missed the January post. Thank you.

  14. different clue

    Its just an effort by the Clintonite Senators to keep “the base” preoccupied with squirrels and shiny objects . . . so they won’t think too hard about what Sanders and Gabbard and hopefully others yet to come are trying to say and get heard about.

    If it keeps millions of the base chasing the red laser dot on the wall like happy kittens, then it is successful, not a “failing strategy”.

  15. IndieCitizen

    As someone who previously worked for a national taxpayer advocacy group that opposed government waste, I actually agree that taxpayers should not have standing to sue the government over waste. In short, such suits would never end. There is a lot of waste out there, and even more spending that some taxpayers just don’t like.

    Instead of endless lawsuits, it’s better to channel taxpayer outrage into the legislative and electoral process. Unhappy taxpayers must build a coalition to get media attention and pressure politicians. Of course, this doesn’t work very well.
    ***
    Part of the Democratic strategy is to use any tool to put the words “Emoluments Clause” into people’s brains — a worthy goal, and one that is partially accomplished. Before the Trump presidency ends, Americans may learn much more about Trump’s Emoluments. But threatening a lawsuit is not the best way. Besides, it feels weak.

    1. Marina Bart

      Part of the Democratic strategy is to use any tool to put the words “Emoluments Clause” into people’s brains — a worthy goal

      I was with you up until this point. Why is getting Democratic partisans thinking about something they can do nothing about and is irrelevant to any governmental policies or actions a worthy goal?

      Why should I care about Trump’s Emoluments? Bill and Hillary Clinton already sold government access and action to dictatorships — including the one most implicated in the 9/11 attacks. Obama is cashing in before our eyes for his work protecting wealth and power while in office. Trump at least was elected as a billionaire. He wasn’t pretending to be anything else. I’m sure he and his family intend to make bank, because that’s what capitalists do. Why are his worse than Bill and Hill’s? And with the Democrats and the CIA succeeding in their soft coup to bring him in line, what else is he going to do? It’s not like he’s actually running the government or anything.

      Moreover, by focusing on this non-starter of a lawsuit, corporate media gets to throw sand in our eyes, pretending Trump is so much worse than his predecessor, to help the Democratic Party change nothing and evade responsibility for its corruption and incompetence.

      Focusing on “Trump’s Emoluments” means not focusing on passing universal health care, expanded Social Security, a higher federal minimum wage, protecting net neutrality, or — mostly importantly — exposing the Democrats’ malfeasance more fully to the citizenry they work against, so that these corrupt corporate courtiers can be purged from the Democratic Party and we can FINALLY get the change we’ve been seeking for at least a decade.

      Focusing on Trump’s Emoluments seems to me to hurt the citizenry and help the elite. I don’t see how that’s worthy.

  16. Scott

    The ability of the Liberal to figure out how to defeat themselves before they even get one step in the ring is well known. For example when Obama was in power & had the opportunity he did not push for single payer.
    I’m not sure of the point of the article. I can simply promise that if you figure out how to lose more than figuring out how to win, you lose.
    A lot of the Democrats don’t even know we are fighting “Privatization”. I am personally affronted and angry that the Trump name is on my post office. I have a side & I want that sign with his name on it destroyed see.
    GOP will say it is against the rules and the GSA gave it to Trump so that is that, put up with it. I don’t buy it.
    Then there are all the Trademarks Ping gave to the Trumps. “May have broken the law.” you keep hearing.
    You have to fight to even gain support for your fight.

    1. different clue

      Obama didn’t defeat himself. He defeated the Single Payerists. He victoried himself. He victoried himself right into hundreds of millions of dollars over the next few decades.

      1. powderbell

        This smacks of revisionist history. How are you so certain that single payer — a more extreme leftist position — was going to pass? The ACA has not only passed, but so far withstood a reactionary Republican Congress that caters to a base that has clamored and bleated about repeal. Putting something like ACA into practice should help to soften attitudes against public sector providence of healthcare, right? Hasn’t ACA helped to move the discussion forward within a Democratic party that continues to move to the economic left? Give Obama a little credit for pulling off a coalition to pass this thing.

        The people who thought that the ACA didn’t go far enough were a minority among independents, Republicans, and Democrats at the time of passing. I’m shocked that you are biting back viciously at the idea that the single-payer faction was compelled to compromise under Obama’s efforts to get healthcare reform legislation built and passed, and are eager to blame it all on Obama. It’s this kind of reactionary backbiting against other leftists that helps to poison the project of continuing to elect Democrats and pressuring them to move to the economic left in the primaries — something which, at face value, it seems that you should want.

        1. Deadl E Cheese

          This smacks of revisionist history. How are you so certain that single payer — a more extreme leftist position — was going to pass?

          Heh.

          The ACA has not only passed, but so far withstood a reactionary Republican Congress that caters to a base that has clamored and bleated about repeal.

          I wonder if apologists like you ever wonder how weirdly circular and question-begging your argument is. The public likes the ACA as a whole but doesn’t like the portions of the ACA that are blatantly capitalist and reactionary — or allow for such tomfoolery, as with state Medicaid expansion. Therefore, a version of health care reform, such as single-payer, that excised those elements had no chance of surviving contact with the voting base. lolwhut?

          And since I can already predict your counter-argument, I’ll just go ahead and tell you not to bother. Even when I was a Democratic partisan I found it even more ridiculous and out-of-touch. Even if we somehow bought the Democratic apologist argument that their voting base prizes reactionary glitter and rhetoric more than they claim to prize anti-reactionary substance (which should clue liberals into the fact that their current too-clever-by-half strategy to fight reactionary politics is fatally flawed, but whatever), the ACA was introduced in a way to not even have the patina of said glitter. That it survived technocratic debacles such as the Obamacare website rollout, double-digit premium increases in an election year, and a ridiculous six-year phase-in in the middle of a generational recession should NOT point towards the conclusion of ‘it was as left as we could make it’. It should point to the conclusion of ‘not only could we have made it further left, we also could’ve made it a short-term asset instead of a liability’.

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