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). Continue reading