As those who follow the debates swirling around President Trump’s extensive conflicts-of-interests are likely aware, last month a United States District Court dismissed, on jurisdictional grounds, a lawsuit asserting that President Trump’s business interests put him in violation of the U.S. Constitution’s foreign and domestic Emoluments Clauses. The opinion came down over a month ago, but I was traveling at the time and didn’t have a chance to read it until recently. There was plenty of informed commentary in the immediate wake of the decision (see, for example, here, here, here, and here), and I recognize that further discussion may not be that useful. But since I had posted several times about the case last year, I thought it might be worth saying a few words about what we might take away from the opinion and its impact.
For those whose memory of the details of the case is a bit fuzzy, a brief recap: The Foreign Emoluments Clause prohibits any official of the U.S. government from accepting any “present [or] emolument” from a foreign government, while the Domestic Emoluments Clause prohibits the U.S. President from receiving any “emolument” from the U.S. government or any state government during his or her term of office. The Citizens for Ethics and Responsibility in Washington (CREW) filed a lawsuit asserting that President Trump was in violation of both clauses. The complaint alleged that several of Trump’s businesses—from which he did not divest—solicited and received the patronage of foreign governments, in contravention of the Foreign Emoluments Clause, and that Trump companies had received business and/or benefits from both federal and state government entities, thereby offending the Domestic Emoluments Clause. The CREW suit, which was later joined by several co-plaintiffs who compete economically with Trump hotels and restaurants, asked the court to enjoin President Trump from continued or future violations of the Emoluments Clauses, and to order him to release his financial records in order to be sure that no such violations took place.
I’m sympathetic to CREW’s arguments on the merits (though I recognize that there are important arguments on the other side, which I admit I haven’t fully worked through – see here and here). But I feared that the lawsuit was likely to be dismissed—not on the merits, but on the grounds that the court lacked jurisdiction to hear the case. Indeed, I thought such a dismissal was almost certain. I also fretted that CREW’s decision to bring the case might be a serious strategic error: My worry was that the near-inevitable dismissal of the suit on jurisdictional grounds would give most of the public the misleading impression that the underlying claims of improper behavior were meritless, and that pro-Trump media outlets would foster that misimpression, with the net result that concern about Trump’s conflicts of interest would dissipate rather than intensify. My concerns somewhat but not fully abated when the additional plaintiffs (competing restaurants, hotels, and their employees) joined the suit. I thought that these additional plaintiffs, unlike CREW itself, were more likely to have “standing” (one of the requirements for the court to have jurisdiction), but that other jurisdictional problems might still stop the court from reaching and deciding the question whether President Trump is in violation of the Constitution.
So, now that the decision is out, what should we think of it, and what can we learn from it? My own reaction is, perhaps, a bit paradoxical: After reading the opinion and the subsequent commentary and news coverage, I’m even more convinced than I was before that this lawsuit and others like it will be dismissed on jurisdictional grounds, but I’m less concerned that pursuing these suits is a strategic mistake (though there are still questions about whether it’s a worthwhile use of scarce advocacy resources, or of the court system).
On the first point, the jurisdictional dismissal was, as I noted above, widely predicted by legal experts (and by non-experts like me). Those of us who anticipated this outcome did so for both legal-doctrinal and practical reasons. As a legal-doctrinal matter, CREW’s claim that it had standing as an organization to sue seemed inconsistent with established Supreme Court precedent, and relied on a very aggressive reading of an old Supreme Court case (and some lower court opinions) that, most observers thought, were either inapposite or superseded by more recent Supreme Court precedents. Moreover, there were a number of other jurisdictional problems in the case, including the question whether the Constitution’s Emoluments Clauses created a cause of action for these plaintiffs, and the possibility that an issue of this sort was a non-justiciable “political question.” As a practical matter, the thinking was that most judges—even judges unsympathetic or downright hostile to Trump—would be unlikely to want to go out on a limb and issue an injunction telling the president to reorder his private business affairs, at least in the absence of any action by Congress. Judges would therefore have strong incentives (consciously or subconsciously) to find a way to dismiss the case on jurisdictional grounds, even at the cost of bending the doctrine a bit. And most legal experts would agree that the various jurisdictional doctrines, including standing and the political question doctrine, are famously/infamously “bendable” in cases like this–which enables a judge to write a straight-face opinion that dodges the need to confront the underlying substantive allegations straight on. That seems to be basically what happened in this case:
- First, the judge concluded that CREW lacked standing because it was not directly injured, in the relevant constitutional sense, by President Trump’s alleged violation of the Emoluments Clauses. That was entirely predictable.
- Somewhat more surprisingly, at least to me, the judge also dismissed the other plaintiffs—the competitors—for lack of standing. Here, the judge did not conclude that the competitors weren’t injured, but the judge reasoned that eeven though they had suffered an injury, in the form of business lost to Trump hotels, they couldn’t show that Trump’s alleged violation of the Emoluments Clauses was the cause of that injury, or that a court decree forbidding Trump from violating those clauses would remedy the injury. I confess I found this part of the opinion both somewhat surprising and deeply unpersuasive, because in numerous other cases in which a plaintiff asserts that an injury has been caused by unlawful conduct by an economic competitor, the courts haven’t required the plaintiff to prove that the defendant wouldn’t have gotten the business anyway, even if it had acted lawfully. And here, the claim that the plaintiffs failed to establish causation or redessability seems especially flimsy, because if the plaintiffs succeeded in their suit, the Trump Organization would be legally barred from accepting the patronage of various foreign and domestic government clients—patronage that would then presumably go to Trump’s competitors, including the plaintiffs in this suit. That said, the doctrine of so-called “competitor standing” is quite murky, and perhaps we see here the court straining to find a way to get rid of the case.
- Moreover, this legally questionable aspect of the decision may not matter, because the court also determined that, as a prudential matter, neither CREW nor the competitor plaintiffs fell within the “zone of interests” that the Emoluments Clause protects, so as a prudential matter the court should decline to hear the case. (Somewhat confusingly, the court also said in a footnote that it would not reach or decide the issue whether the plaintiffs have a cause of action under the Emoluments Clause, even though some courts and commentators treat this as the question answered by the “zone of interests” analysis. But this doctrinal subtleties need not detain us here.) The basic idea here is that even if a plaintiff can show that it was injured by a defendant’s unlawful conduct, and that this injury would be redressed by a favorable judicial decision, the court may still decline to hear the case if it determines that the plaintiffs’ interests in the matter are not those that the relevant legal provisions (here, the Constitution’s Emoluments Clauses) are designed to protect. (For example, a stenographers’ union may not be able to sue to challenge a government decision cutting down on formal hearing rights, even though the stenographers’ economic interests are directly and adversely affected by the reduced government demand for their services.) The doctrine on zone-of-interests is about as murky as the doctrine on competitor standing. If a court wanted to get to the merits, it wouldn’t be too hard to write a convincing opinion that Trump’s competitors do fall within the “zone of interests” that the Emolument Clauses are supposed to protect, on the grounds that even though the Clauses are mainly about corruption, the competitors seek to vindicate their right to compete on fair terms with competitors who don’t have an unfair advantage. But in this case, the court could and did emphasize the idea–also plausible–that the Emoluments Clauses are about protecting the general public from corruption and improper foreign influence, and that the economic interests of competing hotels and restaurants have nothing to do with those objectives.
- Furthermore, the court determined that the allegations a non-justiciable “political question,” one that must be addressed to Congress rather than to the courts. Here again the court may have adopted quite an aggressive, contestable reading of the political question doctrine—but that doctrine, like the doctrine on standing and zone of interests, is sufficiently murky to enable the court to write a plausible opinion doing what it did.
So, my prediction that the case would be dismissed on jurisdictional grounds—and that the judge would strain to find a way to so dismiss the case—turned out to be right. But what about my prediction that as a result of this dismissal, the overall impact of the lawsuit would be to undermine rather than strengthen the political argument that Trump’s conflicts-of-interest are illegal and improper? Here, I think my concern, while perhaps still valid in some respects, was probably overdrawn:
- First off, the initial filing of the lawsuit does appear to have attracted attention to Trump’s various conflict-of-interest problems (see, for example, here, here, and here). True, there may well have been coverage of these issues even without the CREW lawsuit, and indeed there’s been a fair amount of coverage that hasn’t really dwelt on the constitutional dimensions of the problem, or the suit. We can never know for sure what the public conversation of this issue would have looked like without the suit. But it does seem to me, based on rough and unsystematic impressions, that the suit generated a fair bit of media coverage, and perhaps did contribute to the more general media and public scrutiny of Trump’s business affairs and the potential for conflict of interest that they create. So we can count that in the plus column.
- Now, my concern was that this short-term publicity benefit would be more than offset by the consequences of a dismissal on jurisdictional grounds which, I feared and forecast, would be portrayed or understood as a dismissal on the merits. Here, it does seem like the headlines create a misleading impression, even if the actual text of most of the news stories dutifully and accurately report that the suit was dismissed for want of jurisdiction. (Sample headlines: “Judge dismisses suits claiming Trump violated emoluments clause”, “Trump Beats Emoluments Lawsuit Targeting Business Dealings With Foreigners”, “Judge throws out ethics case against President Trump”.) These were exactly the sorts of headlines I was worried about. But my sense—again, based on entirely unscientific, unsystematic impressions from perusing post-decision news and commentary—is that this hasn’t had much impact on overall public perceptions or concerns about possible conflict-of-interest problems in the Trump Administration.
- If I’m right about that, then I suspect the main reason for this is that, as is often the case, the real world moves faster than lawsuits, and at this point there’s been so much other news about possible shady dealings and conflicts of interest involving Trump and his businesses—including most notably suspicions of money laundering—and so many other constitutional or constitutionally-inflected objections raised to President Trump’s conduct in office, that very few voters’ opinions about whether President Trump is corrupt, or whether he respects the rule of law, are likely to be affected one way or the other by what happens with the Emoluments Clause lawsuit.
- If I’m right about that, then my initial worry that bringing the suit was an error in political strategy was overblown, and maybe completely wrong. At the same time, if that analysis is correct, then there’s not likely to be much additional political benefit from these suits.
What does that all mean going forward? CREW and its co-plaintiffs are appealing last month’s decision, and there are a couple of other Emoluments Clause cases currently pending. My sense is that these suits are not likely to do much good, as I continue to think that they’ll all be dismissed for lack of jurisdiction—if not by the district court, then on appeal. And at this point, I don’t think there’s much additional political or publicity benefit to be gained from these suits. At the same time, I no longer think that dismissal of the suits will have much of an adverse political impact, either. There’s just too much going on for Emoluments Clause litigation to move the needle on public opinion very much.
Unless, that is, one of these suits actually proceeds to the merits. That would indeed be a big deal, especially if Trump loses. The odds of that happening seem extraordinarily low, and the odds that such an opinion would survive Supreme Court review are, in my view, approximately zero. But I suppose it’s still possible, and might have a meaningful political impact. But I suspect that the decision we saw last month in CREW v. Trump is likely to be the basic template for the other decisions we’ll see in other opinions on the Emoluments Clause lawsuits in the coming year.