Of the many credible corruption and conflict-of-interest allegations against former President Donald Trump, some of the most prominent concerned the income that the Trump Organization earned from parties with interests in influencing U.S. government policy. While the general conflict-of-interest rules that cover most federal officials do not apply to the President, a subset of the Trump Organization’s business dealings—in particular, those involving foreign governments and state governments—at least arguably violated the U.S. Constitution’s two so-called “Emoluments Clauses. (The Foreign Emoluments Clause prohibits any U.S. official from receiving gifts, titles, or “emoluments” from foreign governments, while the Domestic Emoluments Clause prohibits the President in particular from receiving any benefits other than his official salary from federal, state, or local governments.) President Trump’s alleged violations of the Emoluments Clauses triggered three separate lawsuits, filed by different parties in different federal courts, within Trump’s first six months in office. Those cases gradually wound their way through the legal system, with some defeats and some victories, mainly on threshold legal questions.
Last week, the U.S. Supreme Court brought that whole process to a halt, dismissing petitions for review in two of those pending cases as moot. (The third case had been dismissed by an appeals court, and the Supreme Court declined to review that case last fall.) Thought the Court’s terse, unsigned order included no explanation, the obvious inference is that the Court determined that the Emoluments Clause suits were moot because Donald Trump is no longer President. Importantly, the Court’s mootness order means not only that these suits won’t proceed, but also that the previous legal rulings in the cases under review are vacated, and thus have no precedential value. Legally speaking, it’s as if the cases never happened.
This did not sit well with everyone. Former head of the Office on Government Ethics Walter Shaub described the Court’s dismissal of the cases as “insane,” arguing that the cases are “not moot” because Trump “still has the money.” “When any other federal employee violates the emoluments clause,” Shaub observed, “they have to forfeit the money.” Others involved in the litigation against Trump tried to look on the bright side. The Citizens for Responsibility and Ethics in Washington (CREW), for example, issued a statement noting that the Emoluments Clause litigation “made the American people aware for four years of the pervasive corruption that came from a president … taking benefits and payments from foreign and domestic governments.”
I’ve been trying to figure out what I think about all this. I don’t have a clear, clean bottom line, but I do have a few scattered thoughts about what we might take away from the denouement of the Emoluments Clause controversy.
- First, I fear the episode highlights just how weak and ineffectual the Emoluments Clauses are as legal constraints on a President who chooses to disregard those restrictions. Even putting aside the strengths and weaknesses of the legal arguments on the merits, just consider the amount of time it took for these cases to wind their way through the legal system. As noted above, these cases were filed shortly after Donald Trump assumed office—all three were, I believe, filed within the first six months of his presidency. And by the time he was no longer President, there still had not been a final ruling, from the Supreme Court, on whether the cases could go forward, let alone an actual trial, or even the discovery process. Presumably, if we ever faced this situation again, the process would have to start all over. Maybe it would go faster next time… but maybe not. This is perhaps more evidence from the Trump era—as if more were needed—that legal rules and constraints (at least as they exist in the U.S.) are insufficient for addressing high-level malfeasance in the executive branch, and that system of constraints may be much weaker than many of us had naively imagined. To be sure, if Trump had won re-election, then the cases would not have been dismissed as moot (though they may well have been dismissed on other grounds — more on this anon). But if we finally got a ruling that Trump had to stop having foreign governments rent out his hotels six or so years into an eight year Trump presidency, I don’t think many people would be popping champagne corks to celebrate the robustness of the Emoluments Clauses.
- Second, on the narrow legal question of whether the Supreme Court was correct to dismiss the cases as moot, I think it’s a close question. I should acknowledge up front that I’m not an expert on this particular corner of the law, but my sense, based on what I do know, is that the Court’s decision is questionable but defensible. I would respectfully disagree with Mr. Shaub’s characterization of the ruling as “insane,” mainly because, to the best of my knowledge, the complaining parties did not actually seek disgorgement of the money earned as a remedy for the alleged violations. Rather, the plaintiffs sought (1) a declaration that President Trump was indeed violating the Emoluments Clause by earning income from foreign and state governments through his businesses, and (2) and injunction of some kind to stop Trump from violating the Emoluments Clauses. One can construct an argument that the litigation is not moot because the Emoluments Clause violation persists even if the individual in question is no longer in office, so long as that person continues to possess the unlawful emolument—and that appropriate injunctive relief would entail an order to disgorge the improperly obtained benefits. But one can also read the complaints in the Emoluments Clause cases as seeking only prospective relief—and if so, they are plausibly mooted now that it is no longer possible for Trump to violate the Emoluments Clauses.
- Third, given the composition of the current Supreme Court, I don’t think that anticorruption advocates should be too upset that the Court chose to dismiss the cases as moot. If the Court had proceeded to hear the cases, I think there’s a good chance that the Court would have ruled that the suits could not proceed—for example, on the grounds that the challengers lacked standing or a cause of action, or that Emoluments Clause cases are non-justiciable political questions, or that market transactions can never count as emoluments, or something similar. That would have been an even worse outcome, for the larger project of strengthening the legal restrictions on presidential corruption, than a dismissal of the cases as moot. Maybe I’m too pessimistic about the Court, but it’s hard for me to see a way to five votes for letting these suits proceed. So while anticorruption advocates can (and maybe should) gnash their teeth in public about the Supreme Court’s shameless dodge of this important question, I think that maybe in private we can and should breathe a sigh of relief.
- Fourth, I take seriously the claims of CREW and others that although the lawsuits were in the end dismissed as moot (and may well have failed if they had proceeded), the suits nonetheless served a valuable educative function, calling attention to this particular, and particularly egregious, form of Trumpian corruption. I don’t think that this is just a way for the folks who invested so much time, money, and energy into this litigation to convince themselves it wasn’t a waste—the public awareness-raising aspect of this litigation was always a central part of the larger strategy. Some might dismiss that out of hand as an illegitimate abuse of the judicial process, but I don’t think that’s fair: These certainly weren’t frivolous lawsuits, and there’s nothing inherently wrong with pressing a colorable legal claim in part to call attention to a serious wrong, even if the lawsuit is unlikely to succeed in court. But I feel a bit at sea when trying to evaluate whether the marginal contribution of this litigation to public awareness of the administration’s corruption was worth the cost—where the relevant cost here is (as always) the best alternative use of the resources devoted to this litigation. I would love to know, for example, whether key developments in these suits (such as the initial filings, or important rulings) had a measurable impact on (1) media coverage of corruption and conflicts of interest in the Trump Administration, (2) public opinion (if not mass public opinion, then elite public opinion) on whether Trump’s business dealings were inappropriate, (3) fundraising and general mobilization for the organizations working on these issues. I’d welcome any input that readers could provide on any of these questions—perhaps academic studies of analogous litigation efforts, or anecdotal/qualitative evidence. This is not merely an Ivory Tower academic question: Presumably advocacy groups and others need to figure out how best to allocate their resources, and so would presumably want to know whether filing lawsuits like this is the most effective way to raise awareness of these issues. It may well be – lawsuits generate attention and convey a level of seriousness that allegations and press releases may not. At the same time, litigation is expensive, time-consuming, and risky.
So, at the end of the day (or, more accurately, at the end of four years), I’m not sure what I think about the Emoluments Clause litigation as a response to (part of) Trump’s corruption. As a strictly legal matter, the suits did not succeed, though the outcome we got was probably the best that we could realistically hope for given the current Supreme Court. As a political matter, my purely impressionistic sense is that the suits did play a role in getting and keeping concerns about Trump’s corruption in the spotlight, but on the harder question whether the marginal impact of the suits on public attention to the issue was worth the costs, or was more effective than other awareness-raising techniques, I haven’t a clue, and would welcome insights from others.