After the events of the last ten days, worrying about the potential conflicts of interest created by the Trump organization’s business dealings with foreign governments seems almost quaint. It appears that under the Trump Administration, constitutional crises don’t get resolved, they just get overshadowed by bigger constitutional crises; such are the strange times in which we live. But I did want to return to the topic I wrote about a couple of weeks ago, concerning the pending lawsuit brought by the Citizens for Responsibility & Ethics in Washington (CREW) alleging that the Trump Organization’s business relationships with foreign governments violate the Constitution’s Foreign Emoluments Clause. In my post a couple of weeks ago, I predicted that U.S. courts are likely to toss the suit out on jurisdictional grounds, without reaching the merits of the claim. That assessment appears to be shared by the overwhelming majority of legal experts who have weighed in (see here, here, here, here, here, and here), though the consensus is not quite universal.
Several people have suggested to me that even if the suit has little chance of success, it was good that CREW filed it. They’ve offered two arguments for this assessment: First, even if there’s only a very small chance of success, the costs of bringing the suit are relatively low, and the benefits if the suit does end up succeeding are enormous—so what’s the harm in trying? Second, the mere act of filing the suit, even if it’s ultimately dismissed on jurisdictional grounds, will generate attention to the underlying constitutional and ethical issues, and help both educate and mobilize the citizenry. My colleague Larry Tribe, who is one of the parties who filed the CREW brief, laid out this position clearly and succinctly in an interview shortly after the brief was filed:
Litigation can help bring important principles to light… It helps me teach my students, and it performs an educational function vis-à-vis the public. Of course, I don’t take on causes that I feel confident I will lose purely for educational purposes. But win or lose, we’re going to help educate the public on something that’s very important.
Much as I wish those arguments were true, and much as I wish the CREW lawsuit had some chance of succeeding, I respectfully and reluctantly disagree. I hope that events will prove me wrong, but at the moment I fear that CREW’s decision to file this lawsuit was not only a long shot, but was a serious tactical blunder that will probably hurt the cause overall.
Let’s proceed on the assumption that I’m right that the chances that this suit will prevail—or even reach the merits—are very small, say 1-in-1,000. Some, including Professor Tribe and others on the CREW brief, would say I’m dead wrong in such a pessimistic assessment, but put that aside for now. The question I want to ask here is whether, assuming I’m right that the odds of success are very low (but not zero), it was a wise decision to file the suit. Proceeding on that assumption, there are two main costs to bringing this suit:
- The first such cost is, perhaps ironically, identified in CREW’s complaint as one of the principal bases for standing: Filing this lawsuit consumes CREW’s scarce resources, diverting them from CREW’s other extremely important activities in fighting for integrity in the U.S. federal government (including other efforts to fight corruption in the Trump Administration). While I don’t think that diversion of resources counts as a sufficient “constitutional injury” to establish CREW’s standing under current doctrine, I do think it’s a genuine cost. So I don’t really buy the claim that even if the suit is a 1-in-1,000 long shot, there’s little cost to trying.
- My second concern is much more serious. Professor Tribe and other defenders of the CREW lawsuit presume that the suit will educate the public about Trump’s conflicts of interest, and how these conflicts violate the U.S. Constitution. There’s certainly a tradition in U.S. legal scholarship that asserts constitutional litigation has this educative or discourse-promoting function, though frankly I’ve never seen much convincing empirical evidence that this claim is in fact true. (The favorite leading examples for how constitutional litigation can “educate the public” or “start a conversation” are generally constitutional challenges that succeed, or at least reach the merits.) What I fear will actually happen in this case is that (1) the courts will dismiss the suit on jurisdictional grounds, (2) the headlines will read, “Court Tosses Constitutional Challenge To Trump’s Alleged Conflict of Interest,” and (3) many citizens who don’t understand the difference between a jurisdictional ruling and a ruling on the merits, and who haven’t been following the issue all that closely, will assume that the courts ruled that the constitutional allegations against Trump were bogus. The unscrupulous pro-Trump media/propaganda machine, moreover, will do everything it can to feed that misperception. Then, when advocates try to bring up the Emoluments Clause concern in other contexts (including general public discourse, and possibly – though here I may be engaging in my own wishful thinking – as grounds for impeachment), it will be harder to convince a substantial segment of the public that there’s anything to the allegations. Many people will think to themselves, “Oh, it’s those left-wingers making noise again about some kind of constitutional objection to Trump’s business, but I remember reading in the paper [or, more realistically, seeing on Fox News or in my Facebook feed] that the courts rejected that objection.” Moreover, if the court dismissing the suit has unkind things to say about CREW’s alleged basis for standing (for example, calling it “frivolous” or “overreaching” or whatnot), I have no doubt that such language will be deployed—in a deliberately misleading fashion by Trump’s propaganda machine—to discredit the substantive allegations about the Foreign Emoluments Clause violation. So, far from educating the public about Trump’s possible violations of the Foreign Emoluments Clause, I fear that this lawsuit will have the opposite effect, hastening the demise of those constitutional allegations as a salient political issue.
I dearly hope I’m wrong. If a court finds standing and rules for CREW on the merits, I’ll lead the parade to celebrate my wrongness. Heck, even if a court tosses the case on standing grounds, but the mere fact of the litigation seems to have raised the salience of the underlying conflict of interest concerns without undermining the perception that those concerns are serious, I’ll be happy, and happily eat crow. But right now, I fear that this lawsuit was not just a long-shot calculated risk, but a reckless gamble that could do real and lasting damage.