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?
thank you! damn this site just keeps getting better…what happened to the woman that wrote the great midwest union/people post?
The legal win is not what the Democrats are after….and although the above article is good it is “Russia” and these lawsuits along with other fake issues the Democrats are using to delay, slow down, interfere with, delay again, anything and everything President Trump is trying to do.
That’s not a bad thing. I think Trump himself should give the R Congress free reign to show its true colors while doing basically nothing, letting the clock run out until 2018. Then see what surfaces.
So what’s the point of a law, or even the Constitution, if nobody can seek redress for a law that is broken? If there are no peaceful, civil resolutions, then we’ll just get more violence and terrorism.
There is redress: impeachment.
Apparently, the only redress for a violation of the Emoluments Clause is impeachment. President Pence. Yuck!
We do have the Constitutional acknowledgement of redress of grievances, and the offhand quotes from Franklin, Jefferson, etc. that we have the right to rebel. First you must achieve a political mass following to do such, large enough to cause consternation but not be trampled, ignored, or bought. Possible?
And then you have the comment from Paul Ryan today, about the shoot-up at the Baseball Corral:
“An attack on one of us is an attack on all of us.” http://thehill.com/homenews/house/337770-ryan-an-attack-on-one-of-us-is-an-attack-on-all-of-us
Circle the wagons, the natives are getting restless!
To stretch the baseball meme to the breaking point, a phrase from my youthful days sitting in the bleachers aT Wrigley Field: “Pitcher’s getting nervous, pitcher’s getting nervous…”
There sure is a lot packed by Ryan into that bit of drum-thumping….
> “An attack on one of us is an attack on all of us.”
Yes, there is such a thing as the political class. Letting the cat out of the bag isn’t smart, Paul!
My understanding is that the real purpose of these suits is to make Trump reveal his back tax forms as part of the discovery, assuming it ever gets that far. The assumption is these tax forms will reveal his Russian connections, his bogus income and net worth claims, tax cheating, very small donations, embarrassing sources of income and bogus deductions. It’s being done purely as a fishing expedition to damage his reputation with his base, as if his base cares. The Dems are still pissed off that 10 million Obama voters voted for Trump and they want to rub their noses in it. If successful, they can avoid changing their neoliberal tune instead of confronting their despicable Middle Way.
First, if they don’t have standing, they don’t get to do discovery. The case gets thrown out at the summary judgment stage.
Second, as I have said, the idea that Trump’s personal tax returns will reveal anything about how he does business is ludicrous. I’ve debunked this repeatedly. It’s simply embarrassing to read the petitions I get demanding his tax returns. What they would show is the types of income he is getting, what types of deductions he is taking, and his effective tax rate. They would show if like Romney he’d had Swiss bank accounts and if he’d had them illegally and then come clean in the tax amnesty (experts think that is the reason Romney showed only one year of returns. The prior years would have been refiled to show the income previously not reported, and would be be “stapled,” as in the amendment would be stapled to the front of the original return, so the failure to report the Swiss bank account in earlier years would have been bloomin’ obvious).
You don’t have to show what your sources of income were. Law firm partners don’t list their clients, for instance. You would see the names of any partnerships from which he took income. You do not disclose who you borrowed money from (another nutty claim of the “get the tax returns crowd”). And there is no line for income from bribes.
I think it will actually be a motion to dismiss rather than for summary judgment.
And while I agree with you that tax returns are not helpful, there certainly are other ways in which to trace income and, potentially, emoluments.
If the courts find that the Emoluments Clause requires/implies some form of affirmative duty of disclosure for the President regarding his business interests, this would be a significant win for anti-Trump forces – and, potentially, for democracy.
Thanks for correcting me re the procedural issues. Playing amateur lawyer has its risks.
And to your point re his business interests, another reason I am not sympathetic with all the whinging is that Trump provided comprehensive disclosure in his campaign forms, of literally hundreds of corporations and licensing arrangements in which he has an interest. The info is there but the press and his opponents apparently want Trump to do their work for them.
“If the courts find that the Emoluments Clause requires/implies some form of affirmative duty of disclosure for the President regarding his business interests, this would be a significant win for anti-Trump forces – and, potentially, for democracy.”
But you still have the standing problem, plus you have the problem that the remedy is impeachment, not damages or another known remedy. Members of Congress would have to somehow convince the courts that they have standing to require disclosure and that disclosure of the matters requested was in and of itself a remedy. Possible, but not likely.
If disclosure is required, why can’t Congress demand the President disclose at the beginning of the impeachment trial? If the President refuses, maybe Congress would have standing then. I don’t think the issue of disclosure would be ripe until the House issues Articles of Impeachment.
A person who thinks they might run for high political office one day, especially someone with Trump’s money, would probably make sure their tax records are clean. This is resistance signaling by the Dems.
Please explain what you mean by “clean”.
The only things I anticipate you could infer from Trump’s tax records that would be embarrassing are:
1. He paid very little in taxes most of the time. That is almost to be expected; real estate is effectively a tax shelter. There is a theory he actually leaked the 2005 returns because he paid a decent % of his income in taxes that year
2. Per my earlier comment, he had an illegal Swiss bank account and came clean in the amnesty
3. He made way less than he’s implied, denting his “great businessman” narrative
I don’t think even if you are audited that you are required to refile your returns. To his point about being audited pretty much all the time, his original returns would not give a clue as to what he was audited for and whether he won, won on some points and lost on others, or the IRS won.
More of what Yves liked to call “Kayfabe.” These emoluments lawsuits are a ridiculous waste of resources by useless Congress-critters pretending to “do something,” when their real problem is that they belong to a party that fields candidates who people don’t want to elect. These Democrats should spend their energy jettisoning their corporate lobbyist donors, not on meritless lawsuits. People are tired of being talked down-to and lied-to.
“These emoluments lawsuits are a ridiculous waste of resources by useless Congress-critters pretending to “do something,” when their real problem is that they belong to a party that fields candidates who people don’t want to elect.”
I couldn’t agree more.
The Dems prefer to continue to whine about losing while refusing to look in the mirror to see the real reason they lost. They are too self-centered to seek the truth.
They’ve taken narcissism to a new level and only continue to confirm that by BS such as this.
All the while we have a POTUS who is truly harming the citizens, while the Dems do nothing more than whine about their loss. The Dems have proven themselves useless and I’m having serious doubts they can ever be ‘reformed’ and act for the good of the people. Like the vampires they are, they can’t see their own reflection, preferring instead to whine like spoiled children with no result other than to confirm they are clueless, narcissistic idiots.
Drive a stake in ’em & bring forth the Independent Party.
Before you kill the Vampire Dems, CritterMom, [not to bore y’all with 3rd Party US history], consider the Mueller Process: It’s slow and tedious and neither Trump nor Pence are leaving anytime soon. The Hail Clintonia! hysterics aside Trump’s getting next to nothing done [yeah, Gorsuch, but that’s past].and he’s down to Religious Right approvals since both feel like persecuted minorities.
Anyway, 2018 arrives soon enough, and while the Mueller Process’ slowness can gag a maggot, it just might nail Pence for….what? RICO? Laundering dough? I’m no lawyer! POTUS Pelosi may not be what we want. But Mick Jagger’s YOU CAN’T ALWAYS GET WHAT YOU WANT is instructive
Cheers an’ ‘at
Re Jagger and lyrics, probably wise to include the whole thing so we can remember in context and not be misled into dumb acceptance, TINA incremental gradualist fashion:
No, you can’t always get what you want
You can’t always get what you want
You can’t always get what you want
But if you try sometime you find
You get what you need
For the whole thing: http://www.metrolyrics.com/you-cant-always-get-what-you-want-lyrics-rolling-stones.html
I met Mick Jagger once (in a dream) and I can assure you that neither he nor Keith Richards had a President Nancy Pelosi in mind when they wrote that, or indeed any, song together. Maybe in their solo careers. But I do believe that Sting has an unreleased song somewhere about a Cory Booker presidency with Kirsten Gillibrand as VP, but then he has performed at the birthday parties of post-Soviet oligarchs – and what about his song, Russians? – so maybe it was Manchurian-style disinformation. In our soon-to-be Brave New World he will probably be spending his time singing to the walls of ADX Florence rather than hobnobbing it at the Inauguration Ball.
“Persons must have standing in order to bring a suit…”
This is only true if the “person” is not a financial institution.
Actually it is even true for them. Thankfully. They don’t have the right to sue you when you have no relationship with them.
It’s much easier to do these things than address why Trump won in the first place. And Establishment Dems get to keep their positions as fiddlers. Win-win, for them. They would rather have Pence in the White House anyway. He’s one of them.
trump needs to go after this medical marijuana sanctuary city crowd, and cut them out of federal public project funding (where the moolah for the unions and blue state politicos is).
there’s a point where sore losers become annoying.
Why does he need to go after the medical marijuana crowd? Is it really true that only Union Members use medical marijuana (those drug-addled b**tards… I guess you do learn something new every day).
Several medical marijuana states ( whole states) voted for Trump. Some of the Trump voters might be medical marijuana users. Renewing the persecution of marijuana might make some Trump supporters unhappy.
If a hotel lost all of the regular foreign emissary business to Trump owned hotels since the inauguration would and was told by these former customers that this would ensure better outcomes to negotiations with the United States of America, would these circumstances be sufficient for standing in regards to the emoluments clause?
Strike the would immediately following inauguration.
An interesting question– you might want to look at my December post, US Constitution’s Emoluments Clause: a Nothingburger for Trump, which I linked to above, and which discusses the issue of whether a business competitor might have standing to sue.
As I wrote there, the key issue as I see it is even if a business competitor establishes standing, the remedy the court might order would be quite limited– a rescission of a particular contract, say, or perhaps a rollback of a policy.
> the remedy the court might order would be quite limited
I can see it coming:
I wish to thank Ms Scofield, for her reply.
Reading her first article regarding the Emoluments Clause showed that my hypothetical might have standing but if the former customers were paying market rates for a yuge Trump suite, then meh, a big nothing burger.
Clearly our hard fighting Democrat congressional representatives need to reach across the aisle
and appeal to their Republican counterparts to ride the wave that is bipartisanship and impeach Trump. Because that law suit is going nowhere…
For clarity, I don’t advocate impeaching Trump. I am firmly in favor of nominating a candidate that will beat him in 2020 by campaigning on issues with universal benefits.
I think 90%* of the reason “the emoluments clause” is the talking point that will not die is that liberal Democrats love to show off by using fancy words** (that, and futile virtue signaling).
** To be fair, I love fancy words too, but that’s because mastery of the language is empowering, and I want to pass that along.
Nice catch, Bro Lambert!
I have an easier case for them — a secretary of state that took millions bribes while in office from Gulf States that kill gays, enslave women and engage in ethnic cleansing:
Clinton Foundation Take:
Saudi Arabia: $25,000,000 – State Dept. approval for U.S. arms sales to Saudi Arabia
Prince of Abu Dhabi: $5,000,000 – Muted criticism by State of Bahrain’s abysmal human rights practices.
Brunei: $5,000,000 – State Dept. clearance for U.S. weapons sales to Brunei.
GEMS Education, Dubai: $5,600,000 – Bill Clinton made honorary chairman.
Kuwait: $10,000,000 – State Dept. clearance for U.S. weapons sales to Kuwait.
Sheikh Mohammed H. Al Amoudi: $10,000,000 – Influence-buying within the Clinton State Dept.
Qatar: $5,000,000 – State Dept. approval for U.S. arms sales to Qatar.
United Arab Emirates: $5,000,000 – State Dept. approval for U.S. weapons sales to the UAE.
Oman: $5,000,000 – State clearance for U.S. weapons sales to Oman.
And since liberals love hating Russia, they can add a bribery charge regarding Hillary’s cash take for the Uranium One deal:
I think you’ll find that is not a case of emoluments but the price of doing business. And what could be more empowering than a woman like HRC becoming the madame of the State Dept?
The Democrats would have to be politically insane/suicidal/stupid to pursue impeachment before the 2018 midterms.
So I guess that means we can expect continual attempts to impeach Trump from today onward…