By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much 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.
The New York Times reports that nearly 200 congressional Democrats sued Trump in federal court today, arguing that he accepted funds from foreign governments and thereby contravened the (foreign) emoluments clause of the U.S Constitution, as reported in Democrats in Congress Sue Trump Over Foreign Business Dealings.
Democrats continue to pursue a line of similarly misguided suits, as I’ve discussed before in three previous posts, see Senate Democrats Discuss Doubling Down on Losing Strategy of Suing Trump on Emoluments, Law Profs Sue Trump, Alleging Violation of the Emoluments Clause, and US Constitution’s Emoluments Clause: a Nothingburger for Trump.
These suits allege that activities that arise out of Trump’s business holdings violate the emoluments clause of the U.S. Constitution, found in Article 1, Section 9, and that 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.”
Now, as problematic as these conflicts of interest may be, as I’ve written before, beginning in this December post, US Constitution’s Emoluments Clause: a Nothingburger for Trump, the basic hurdle that those wishing to use the US legal system to shut down Trump’s alleged violations of the emoluments clause must clear is to establish that they have standing to sue. As I’ve written before, “Just because something’s unconstitutional, doesn’t mean that any such unconstitutional activity will necessarily be prevented, precluded, or punished.”
To elaborate further:
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.
Standing Hurdle Remains
And so far, neither a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit watchdog group, which I discussed in this post, Law Profs Sue Trump, Alleging Violation of the Emoluments Clause, nor another suit filed earlier this week and reported by the New York Times here, Maryland and District of Columbia Sue Trump Over His Businesses, nor this latest suit filed by congressional Democrats–and which, tellingly, no Republicans have joined and which I anticipated and discussed in this post, Senate Democrats Discuss Doubling Down on Losing Strategy of Suing Trump on Emoluments— manages to clear that basic standing hurdle.
Left to my own devices, I would have ignored the latest suit, as I’ve written about similar cases before, and I continue to maintain these cases are going nowhere. But I noticed that the Grey Lady hasn’t yet fully grappled with the standing problem, and indeed, cited a source to suggest that the mere filing of multiple lawsuits can surmount the standing obstacle:
Yet each new set of plaintiffs makes it harder for the Justice Department to defend the president on the grounds that his opponents have no legal standing to sue him, Mr. Trump’s critics said. “It puts the government in the position of saying that nobody can address this — not hotel competitors, not states, not members of Congress,” said Norman Eisen, the chairman of CREW, which started the legal efforts. “And you cannot get away with that in a rule-of-law system.”
Hmm, I don’t think so. Either a plaintiff has standing to sue, or s/he does not. And just because multiple plaintiffs may assert, over and over again, that they do have standing to sue– in order to address Trump’s alleged violations of the emoluments clause, or any other issue, for that matter– does not mean that these assertions will wear down the federal judges to whom these claims are presented until someone– anyone?– decides to allow a claim to proceed and to address its particulars on the merits. Shame on the New York Times for not taking on board this basic fact.
Let’s turn now to the Washington Post’s account, Congressional Democrats to file emoluments lawsuit against Trump, which focuses on the basic error of using courts to try to address what’s actually a political problem:
Other legal scholars were skeptical, particularly since the lawsuit was filed only by Democrats, the minority party in both houses of Congress.
“Just because they can’t convince their peers doesn’t mean you can go to court to get what you want,” said Andy Grewal, a law professor at the University of Iowa.
Generally, a lawmaker can sue if he or she has suffered individual injury, Grewal said. In addition, Congress can sue as a body, as has happened in the past, such as with the lawsuit challenging President Barack Obama’s health-care overhaul.
But a case like this is problematic, he said,
“Because this is individual legislators who don’t have any individual injuries, it will be hard for them to get standing,” he said.
More importantly, I should mention, noticeably absent from today’s NYT account is any discussion of what’s widely understood to be the appropriate constitutional remedy for violating the emoluments clause, as I’ve written previously, Senate Democrats Discuss Doubling Down on Losing Strategy of Suing Trump on Emoluments:
…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.
So, bottom line, even if Trump is in violation of the emoluments clause, and members of Congress wish to pursue him for that reason, the appropriate constitutional remedy is not to be found via the courts, but through impeachment.
Let’s assume, then, that the political process– impeachment– is successful. The consequence: We end up with President Pence.
Do we really want to go there?