By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The WaPo yesterday reported Attorney General Bob Barr’s trolling the anti-Trump resistance resistance by booking a private holiday party in December at a Trump-owned hotel, Barr books Trump’s hotel for $30,000 holiday party:
Barr signed a contract, a copy of which was obtained by The Washington Post, for a “Family Holiday Party” in the hotel’s Presidential Ballroom Dec. 8. The party will feature a buffet and a four-hour open bar for about 200 people.
Barr is paying for the event himself and chose the venue only after other hotels, including the Willard and the Mayflower, were booked, according to a Justice Department official. The official said the purpose of Barr’s party wasn’t to curry favor with the president.
Barr holds the bash annually, and it combines holiday festivities and a ceilidh, a party featuring Irish or Scottish music.
“Career ethics officials were consulted, and they determined that ethics rules did not prohibit him from hosting his annual party at the Trump hotel,” said the official, who spoke on the condition of anonymity because the party is not a Justice Department event.
At first glance, this booking might seem to be a violation of the emoluments clause of the US Constitution (Article 1, Section 9): “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.”
Emoluments Clause Ain’t Kryptonite
Alas, one of many bad Democratic ideas: using the emoluments clause as some Trump-busting version of kryptonite, a veritable gotcha. Rather than doing hard political work and figuring out how to beat the Donald, those proud of their ability to spell “emoluments” – and even moreso, to define what the word means – have tried to wield this seeming superweapon, to eliminate or harass post hoc the specter their Chosen One failed to vanquish in 2016.
Alas, courts have so far declined to agree, as I indeed predicted, in previous posts (see US Constitution’s Emoluments Clause: a Nothingburger for Trump, Law Profs Sue Trump, Alleging Violation of the Emoluments Clause; Senate Democrats Discuss Doubling Down on Losing Strategy of Suing Trump on Emoluments; and Party On! Congressional Democrats Pile On to Another Bogus Emoluments Clause Lawsuit).and Emoluments Decision: No Way Back Machine).
The basic problem. Standing. Translation: Just because something’s unconstitutional, doesn’t mean anyone has standing to do anything about it. As I wrote in the nothingburger post referenced above:
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.
Even if a plaintiff manages to clear the standing hurdle, other considerable obstacles loom to prevent recovery. And I should mention, that the form recovery would take would be limited, in that it might extend to unwinding the transaction, or perhaps forcing Trump to divest himself of certain holdings. But it certainly wouldn’t result in a do over of the 2016 election, or an installation of Hillary Clinton as president.
Last month, a unanimous panel of the United States Court of Appeals concurred, and tossed one of two pending emoluments cases against Trump, according to NBC, Appeals court dismisses emoluments clause case against Trump involving Washington hotel:
The attorneys general of Maryland and Washington, DC accused President Trump of violating the Constitution’s emolument’s clauses, which bar the president from receiving “any present, emolument, office or title of any kind whatever from any king, prince, or foreign state” or any state in the U.S. Their lawsuit, filed in 2017, said he improperly benefits financially whenever foreign or state governments patronize the Trump International Hotel on Pennsylvania Avenue.
But the appeals court said Maryland and the District could not prove that state or foreign governments were patronizing the Trump hotel because it distributes profits or dividends to the president, rather than because of any of the hotel’s other characteristics.
“Even if government officials were patronizing the hotel to curry the president’s favor,” the court said, “there is no reason to conclude that they would cease doing so were the president enjoined from receiving income from the hotel. After all, the hotel would still be publicly associated with the president, would still bear his name, and would still financially benefit members of his family.”
In short, the court concluded, the link between official patronage of the hotel and the hotel’s payments of profits to Trump is too remote to justify the lawsuit. And the ruling said it was not at all clear that any court action barring the president from receiving money from the hotel would cause officials to stop patronizing it.
Jerri-Lynn here. See the opinion here.
Pouring Petrol on the Fire
Trump himself this weekend rekindled the controversy, by proposing to hold next year’s G7 meetings at the Doral resort which he still owns, according to The Hill, Trump invites new emoluments fight with G-7 resort pitch:
President Trump stepped into another controversy of his own making Monday by suggesting the U.S. could host world leaders at his golf resort outside Miami for next year’s Group of Seven (G-7) summit.
If Trump were to make his resort the meeting venue, his critics argue it would be another clear violation of the Constitution’s Emoluments Clause, which prohibits presidents from accepting payments from foreign countries, U.S. states or the federal government.
“This is a president who has converted the presidency into an instrument of enrichment from day one. There is simply no line between what is official government business and what is a private money-making enterprise — it is all one big venture,” Rep. Jamie Raskin (D-Md.), a House Judiciary Committee member and former constitutional law professor, said Monday in a phone interview with The Hill.
“If he decides to hold the G-7 meeting in 2020 at Trump National Doral Golf [Club], this would be a perfect violation of the foreign and domestic emoluments clauses,” Raskin added. “This is precisely what the framers of the Constitution opposed.”
Other legal experts and Democrats also raised objections.
Laurence Tribe, a Harvard Law School professor, tweeted that Trump’s pitch was “Emolumentally clear! Trump keeps proving that he is deliberately violating the Constitution’s main safeguard against financial corruption and compromise of presidential decisions by foreign powers.”
The Bottom Line
Give it up, guys. The emoluments clause isn’t kryptonite, and even on an expansive reading, is not much more than a nuisance to Trump. Eyes on the 2020 prize please.