Reflections on the Recent Dismissal of One of the Emoluments Clause Suits Against Donald Trump

One of the issues we’ve been following (on and off) over the last couple of years concerns the lawsuits (three in total) that various plaintiffs have brought against President Trump for alleged violation of the U.S. Constitutions “Emoluments Clauses” (see here, here, here, here, and here). In brief, Article I, Section 9 prohibits officers of the United States from accepting “any present, Emolument, Office or Title, of any kind whatever, from any … foreign state” unless Congress consents, while Article II, Section 1 prohibits the President specifically from receiving (during his or her term in office) “any other Emolument [other than the President’s official salary] from the United States, or any of them.” Critics of President Trump have argued that, because President Trump has not fully divested himself from his various businesses, and foreign governments have purchased goods and services from those businesses (or granted them other advantages, such as regulatory approvals or tax breaks), President Trump is in violation of the Foreign Emoluments Clause. Similar sorts of transactions between state governments and Trump-owned businesses give rise to alleged violations of the Domestic Emoluments Clause. And these various lawsuits have sought a judicial remedy for these alleged violations—presumably an injunction requiring either divestment, or else a transfer of any proceeds or profits from prohibited transactions to the U.S. Treasury or some third party (though the plaintiffs in these suits have been a bit vague on exactly what sort of relief they’re seeking).

A potential hurdle for these suits, though, is whether these plaintiffs are allowed to bring them in the first place—a question independent of, and prior to, the merits of their claims. Under U.S. law, a plaintiff bringing a challenge in federal court must have “standing” to bring the claim, a requirement that has been interpreted (pursuant to an aggressive extrapolation from Article III of the Constitution) to require the plaintiff to demonstrate that the defendant’s unlawful conduct causes the plaintiff a direct, concrete injury that is fairly traceable to the defendant’s conduct and that could be remedied by a court order. In addition to this standing requirement, the plaintiffs must also show that they have a valid “cause of action”—in other words (and simplifying the legal complexities a bit) they must show that the legal provision under which they’re suing (here the Constitution’s Emoluments Clauses) allow plaintiffs like them to sue to enforce those legal requirements. This in turn typically requires the plaintiffs to show that they have at least a colorable argument that their interests fall within the “zone of interests” protected by the law in question. Even some people (me included) who were sympathetic to the merits of the plaintiffs’ claims worried that, under existing doctrine, the plaintiffs in these cases might lose on standing and/or cause-of-action grounds, especially because federal courts might be anxious to make these cases go away without having to reach the merits.

Three weeks ago, the U.S. Court of Appeals dealt a serious blow to one of these Emoluments Clause cases, ruling that the plaintiffs (Washington D.C. and the state of Maryland) lacked standing to bring the case. In doing so, the appeals court reversed—and chastised—a district court judge who had concluded the plaintiffs had standing, and who later rejected the defendant’s other arguments for dismissing the suit before discovery could proceed. It’s taken me a while to read the opinion carefully, but now that I have, I figured it might make sense to offer some quick reactions. (The delay means that this can’t count as a “hot take.” Perhaps we can call it a “lukewarm take”?)

My main reactions—what the kids today would call the “TL;DR” version—are as follows: (1) The appeals court’s standing ruling is badly flawed as a matter of law. (2) That doesn’t mean the suit should have been allowed to proceed, because there are other preliminary barriers that might have been harder to overcome. (3) Despite the serious legal flaws in the Court of Appeals’ ruling, I think it significantly reduces the odds that these cases might proceed to discovery and trial, notwithstanding the fact that the litigation isn’t technically over. (4) The political consequences of the dismissal, though not great, are likely not as significant as people like me had worried, but nonetheless this case is a troubling and unnecessary abdication of a potentially important judicial check on (unconstitutionally) corrupt behavior. Let me elaborate each of these points: Continue reading

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

The Dismissal of the CREW v. Trump Emoluments Lawsuit: Some Quick Reactions

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

Guest Post: The Obiang Trial Suggests Innovative Approaches To Fighting International Corruption

GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Over the past two months, the French Tribunal de Grande Instance in Paris (the principal trial court) heard evidence in the case against Teodoro Nguema Obiang Mangue (known as Teodorin), on charges of corruption and money laundering, among other allegations. Teodorin is the son of Teodoro Obiang Nguema Mbasogo, the long-time – and notoriously corrupt – President of Equatorial Guinea, a resource-rich country that also has some of the most widespread poverty in the world. Yet Teodorin, who is currently Vice President , owns vast real estate in Paris, a private jet, a yacht, and a fleet of vintage and modern automobiles, among his other known assets. This case has been discussed extensively on this blog (see here, here, here, here, here, here, here, and here), but it’s useful to recap how the case came to trial in the first place:

The case against Teodorin was primarily the result of diligent efforts by NGOs, including the French anticorruption group Sherpa and the French chapter of Transparency International (TI). In 2007, Sherpa and others filed a complaint with the Public Prosecutor in Paris alleging that the ruling families of Equatorial Guinea, Angola, Burkina Faso and the Republic of the Congo held assets in France that were not the fruits of their official salaries. After a brief investigation, the Public Prosecutor dismissed the claims. Several of the NGOs, joined in some instances by citizens of the countries in question, then used a French procedure known as constitution de partie civile to cause a criminal investigation by an investigating magistrate (juge d’instruction). This effort was opposed by the Public Prosecutor. A Court of Appeals initially upheld the prosecutor’s position and dismissed TI’s intervention, but in an important 2010 ruling, the French Cour de Cassation (Supreme Court) ruled that TI was a proper partie civile authorized to instigate the criminal investigation. Ultimately Teodorin was bound over for trial, now with the support of the Public Prosecutor (as well as the continued active participation of TI and other NGOs). A decision is expected in October.

The procedures that brought Obiang to trial are interesting because they highlight four important differences between French and US criminal procedures, and more generally illustrate several legal deficiencies, in countries like the United States, that often hinder the worldwide fight against transnational corruption: Continue reading

CREW’s New and Improved Legal Complaint Against Trump

Can anything be done about the serious corruption risks posed by Donald Trump’s dual role as President of the United States and patriarch of a vast business empire? Do any of these apparent conflicts of interest break the law? If so, is it reasonable to hope that the courts will step in?

As readers of this blog are likely aware, a group of activists, lawyers, and legal scholars have asserted that the answers to the above questions are Yes, Yes, and Yes. The fact that President Trump’s companies do business with foreign governments, the argument goes, means that the President is in violation of the U.S. Constitution’s Foreign Emoluments Clause, which prohibits any person “holding any office of profit or trust under [the United States]” from accepting, without congressional consent, “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Shortly after the inauguration, Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit advocacy group, filed a lawsuit seeking a declaration that President Trump was in violation of the Foreign Emoluments Clause and a court order enjoining the President from further violations of that clause.

Before CREW filed its suit, I was skeptical about the prospects of a judicial remedy for this alleged Emoluments Clause violation—not because I didn’t think that President Trump was in violation of the clause (quite the opposite), but because I didn’t think it was realistic to expect that a court would be willing to order the sitting President to rearrange his financial affairs (or hold him in contempt if he didn’t). My prediction was that the court would find a way to dismiss the suit on jurisdictional grounds, or deem it a non-justiciable “political question.” And my skepticism only deepened after CREW filed its original complaint. Like many other legal analysts, I thought that CREW’s claimed basis for “standing” (which requires a direct, concrete, non-ideological injury to the plaintiff) was flimsy and would likely be rejected, and I worried that the whole enterprise would prove counterproductive, because a dismissal on jurisdictional grounds would be widely misinterpreted as a judicial rejection of the substantive claim that Donald Trump is violating the Constitution.

Two days ago, CREW filed an amended complaint, which has caused me to rethink (though not entirely abandon) my earlier skepticism. The new complaint includes a number of changes, but by far the two most important are these:

  1. The amended complaint adds two new plaintiffs to the suit—an association of restaurants and a Washington, D.C. event planner—whose claims to have standing are much stronger than CREW’s.
  2. The amended complaint also adds new substantive allegations that President Trump is not only violating the Foreign Emoluments Clause, but is also violating a separate provision of the Constitution, the so-called “Domestic Emoluments Clause,” which states that the President shall receive a fixed salary, which cannot be changed during his term, and that the President “shall not receive within that period any other emolument from the United States, or any [state].”

In a future post I may have something to say about the Domestic Emoluments Clause issue, but for now I want to focus on how much difference the addition of the two new plaintiffs makes to the likelihood that the lawsuit will survive a motion to dismiss on jurisdictional grounds. My initial take is that it makes a big difference—the case for standing, under current doctrine, is now much stronger than it was before—but some problems still remain. Continue reading

Why CREW’s Foreign Emoluments Lawsuit Probably Won’t Succeed

A couple months back, before Donald Trump was formally inaugurated as President of the United States, I dismissed as a “pipe dream” the idea of successfully suing President Trump for violations of the U.S. Constitution’s Foreign Emoluments Clause—which prohibits any United States officeholder from accepting any “emolument” from a foreign state without the consent of Congress—due to the Trump Organization’s business dealings with foreign governments. Was my dismissive take premature? We may find out soon: Earlier this week, the Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit in the Southern District of New York raising this very claim, and asking the New York court to issue an order enjoining President Trump from continuing to violate the Clause.

I have a great deal of respect for CREW, and on the merits, I tend to think that Trump may well be in violation of the clause (though I don’t think it’s quite as obvious as the CREW brief and some other commentators have suggested, for reasons I might get into in a future post). But I continue to be skeptical that this suit has much chance of success, because I don’t think that the court will ever reach the merits of the claim. Rather, the case is likely to be dismissed before reaching the merits, for three reasons. Continue reading

Removing Barriers to Private Actions Against Corruption by Liberalizing Standing Doctrine

Although most countries have traditionally relied on public bodies to enforce anticorruption laws, frustration with the ineffectiveness of public enforcement has led a growing number of activists and scholars to champion private lawsuits as an additional tool in the anticorruption arsenal (see, for example, here and here). Not only can private enforcement supplement government enforcement, but (as I have discussed previously) private enforcement can push public enforcers to do their job more scrupulously. However, in many jurisdictions private actions to enforce anticorruption laws face a daunting obstacle: the doctrine of standing (known in some jurisdictions by its Latin name, locus standi). The difficulty is that most corruption cases do not have an identifiable victim, or an aggrieved person in its traditional sense. For this reason, in many jurisdictions, those parties (often civil society NGOs) attempting to bring private suits against corrupt actors may be deemed not to have the requisite standing.

The question, then, is whether it is possible and desirable to adopt a broader conception of standing, one that would entitle citizens or NGOs to initiate actions against corrupt actors, even if the complainants cannot establish that they were personally and directly injured by the alleged corrupt conduct. Proponents of a restrictive interpretation of standing doctrine tend to argue that a more expansive notion of standing could inundate the courts with weak cases, including cases brought by vexatious litigants without a genuine interest in the underlying allegations. But these concerns are exaggerated. It is quite possible, as several jurisdictions have already demonstrated, to liberalize standing doctrine to empower private anticorruption plaintiffs without opening the floodgates of meritless litigation. Moreover, the legitimate concerns about abuse of the judicial process can be addressed in other ways. Continue reading