An Encouraging, Albeit Limited, Development in the Emoluments Clause Litigation Against Donald Trump

Sometimes it feels great to have been wrong. Last week, a United States District Judge ruled that a lawsuit brought by the District of Columbia and the State of Maryland against Donald Trump for alleged violations of the Constitution’s Foreign and Domestic Emoluments Clauses could go forward (at least for now). More specifically, the judge rejected President Trump’s argument that the plaintiffs lacked “standing,” as well as various related but distinct challenges to the court’s jurisdiction to hear the case.

When the first Emoluments Clause suits were filed against Trump (three have been brought so far, in different courts by different plaintiffs), I was one of many commentators who predicted that the cases would be dismissed on jurisdictional grounds. That prediction seemed borne out when the first of these cases, brought by the Citizens for Responsibility and Ethics in Washington (CREW) was dismissed on jurisdictional grounds last December. While some of the legal reasoning of that decision was questionable, I’d assumed that other courts would follow suit, on the logic that most judges would want to avoid having to decide these cases on the merits, and the jurisdictional doctrines are sufficiently malleable that a competent judge would be able to write a defensible opinion dismissing the cases for want of jurisdiction. (Initially I also fretted that a jurisdictional dismissal could be exploited by Trump and his allies to imply that the courts had rejected the merits of the argument that Trump’s mixture of his business affairs and his public office crosses a constitutional line, but on further reflection I now tend to think no development in these cases short of a Supreme Court ruling on the merits—and possibly not even that—would have a measurable impact on public opinion.) So it came as a welcome surprise that the ruling last week held that the Emoluments Clause suit can proceed.

There’s already been a fair bit of coverage of the ruling (see, for example, here, here, here, and here), and I’m not sure if I have that much to add, but since I’ve been commenting fairly regularly on developments in the Emoluments Clause cases, I’ll make a few additional observations: Continue reading