By Frank Bowman

Over the past year, three different lawsuits have been filed against Mr. Trump alleging that he is violating either the foreign or domestic emoluments clauses of the Constitution. One of these suits was brought in the Southern District of New York by an organization styling itself Citizens for Responsibility and Ethics in Washington (CREW). CREW is headed by Norman Eisen and Richard Painter, top ethics lawyers for the last two presidents, and aided by a roster of big-name constitutional law academics including Erwin Chemerinsky and Larry Tribe. Nonetheless, from the outset its emoluments case rested on a shaky procedural foundation.

On December 21, 2017, District Judge George B. Daniels dismissed the CREW lawsuit on two grounds — first, lack of standing and, second, an amalgam of the political question and ripeness doctrines.  The standing problem with the CREW lawsuit has always been its obvious weakness.  The emoluments suit brought by the Maryland and D.C. attorneys general may be the best positioned to surmount that hurdle.  But Judge Daniels’ political question / ripeness rationale represents a more fundamental obstacle to any emoluments lawsuit against Mr. Trump.

Standing

I addressed the standing issue in the emoluments context a few weeks ago.  Briefly, federal courts only hear cases in which there is an actual “case or controversy” — a concrete real world dispute in a matter over which the particular court has “subject matter jurisdiction” and that can be resolved by an order from the court, whether it be a finding of guilt in a criminal case or liability in a civil case, followed by a court order imposing a penalty or commanding compensation or perhaps injunctive relief compelling somebody to do something.  Federal courts do not render “advisory opinions” — legal opinions about a disagreement that has not actually manifested itself in a concrete real world dispute.  And even in cases where there may be a real dispute between identifiable parties, courts will not intervene unless one of the affected parties brings an action.  To take a simple example, if I am walking down the street and see a police officer assaulting a citizen without cause, I cannot bring a lawsuit against the officer even though the assaulted citizen surely could.

Therefore, the first hurdle any plaintiff in federal court must overcome is to demonstrate that he, she, or it has an actual stake in a real world dispute.  A party with such a stake has “standing.”  A party without it does not. This is a problem in the emoluments clause suits against Mr. Trump. One might think that all U.S. citizens have an interest in ensuring that the president and all other federal officials adhere to the constitution. But the federal courts long ago decided that that sort of generalized interest in constitutional order is customarily not sufficient to grant standing. Some more direct impact on the plaintiff is required.

The plaintiffs in the CREW lawsuit were of two kinds — first, CREW itself, and second, individuals and groups involved in the hotel and hospitality business in markets where the Trump organization has holdings.

CREW argued that it had standing based purely on the fact that, once Mr. Trump took office and declined to fully divest or disassociate himself from businesses like the Trump Hotel in downtown Washington, D.C., CREW — as an organization devoted to promoting ethics in government — felt obliged to expend resources to investigate the conflicts of interest presented by Mr. Trump’s continued association with these businesses.  If this sounds thin, it is.  There is a line of cases, beginning with Havens Realty Corp. v. Coleman, in which public interest organizations gained standing on somewhat analogous grounds.   However, Judge Daniels concluded that those cases were directed at situations in which the government policy at issue adversely affected some program being conducted by the organization or some class of persons with protected interests the organization was designed to serve.  He found that expanding standing to the degree advocated by CREW would give any organization with a “mere interest in a problem” standing to sue, something not contemplated by standing doctrine.

The other plaintiffs in the CREW lawsuit, the individuals and groups engaged in the hospitality industry, were plainly recruited in order to circumvent the standing hurdle.  Their argument was that, if Mr. Trump is allowed to continue to operate — and profit personally from — hotels and restaurants during his term as president, many customers with an interest in currying favor with the Trump Administration will patronize Trump hotels and restaurants, rather than those operated by his competitors, to the financial detriment of those competitors.  Judge Daniels did not deny that such financial injury might occur, but he found the causal relation between Trump’s continued financial interest in his hotels and injury to the plaintiffs too speculative.  He observed that customers may prefer Trump properties for reasons of location, price, superior services, and the like, and believed it impossible to determine the reasons for their preferences with any exactitude.  Frankly, I find this argument rather weak inasmuch as some customers plainly will choose Trump properties to curry favor with the Trump family and CREW provided examples of customers who have publicly said as much.

More convincingly, at least to my mind, Judge Daniels held that the sort of competitive injuries allegedly suffered by the hospitality industry plaintiffs were not within what he called the “zone of interests” protected by the foreign and domestic emoluments clauses.  Judge Daniels concluded that the domestic emoluments clause was intended to prevent states from giving financial benefits to federal officers that might induce favoritism by the federal government, and the foreign emoluments clause was designed to protect against the corruption of high federal officials by foreign governments.  Thus, he said, neither clause was intended to protect commercial competitors of a president’s businesses against any competitive advantage accruing to those businesses by virtue of his office.

Political question / ripeness

The final portion of Judge Daniels’ opinion rests on the text of the foreign emoluments clause and two policies developed by federal courts to avoid involvement in cases that are either outside their institutional competence or unready for resolution: the political question and ripeness doctrines.

Put very simply, the political question doctrine is a rule of abstention –  the federal courts should generally decline to rule on “constitutional issues that are better left to other departments of government, mainly the national political branches.”  The ripeness doctrine is a component of the “case or controversy” requirement — since federal courts are only supposed to rule on cases where there is a concrete legal dispute capable of resolution by court order, they should hesitate to intervene if a threatened injury has not yet occurred and its occurrence is contingent on unpredictable future events.  Sometimes ripeness questions turn on whether a party seeking redress has exhausted all its other avenues of relief.

The foreign emoluments clause reads as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Judge Daniels makes the critical observation that the Clause does not absolutely prohibit federal officers from accepting presents or emoluments from foreign governments. Rather, it says that federal officers cannot do so “without the Consent of Congress.”  Judge Daniels notes that Congress has so far taken no action regarding Mr. Trump’s alleged violations of the foreign emoluments clause.  It has neither announced its opinion about whether Mr. Trump’s commercial ventures generate emoluments covered by the clause, nor, assuming that they do, either given or denied consent to Mr. Trump keep such emoluments. Judge Daniels seems to be of the view that the question of what constitutes an emolument is, at least in the first instance, a question for Congress.  Moreover, he strongly suggests that any dispute over emoluments cannot be “ripe” for adjudication by courts unless and until: (a) Congress has found the president to have received improper emoluments and refused its consent to that receipt, and (b) the president has refused to surrender the emoluments.

I am of two minds on this point.  On the one hand, I entirely understand the reluctance of a district judge, and indeed of the judiciary generally, to intervene prematurely in a matter that the constitutional text arguably frames as an issue between the executive and congress. On the other hand, in this case, it seems plain that congress has refrained from acting, not only for the political reason that it is controlled by members of the president’s party, but also because there is no authoritative definition of the constitutional term “emolument.”  If judges refuse to assume jurisdiction over any emoluments case because congress has not acted, and congress refuses to act because there is no judicial definition of “emolument,” then the foreign emoluments clause becomes a dead letter. It cannot be right that a major constitutional protection against executive branch corruption can be emasculated by the silence of a president’s political allies.

Several months ago, Professor Jed Shugerman considered this question on his blog and argued convincingly that the foreign emoluments clause is similar in structure — a general prohibition followed by a provision for congressional exceptions — to other constitutional clauses that courts have traditionally considered justiciable.

The only useful remedy is impeachment

The problem that remains for me, however, is remedy.  The CREW complaint seeks declaratory relief (for non-lawyers, a statement by the court of what the law is and that Mr. Trump is violating it), a court order directing Mr. Trump to formulate a plan for ordering his affairs in a way that does not violate the emoluments clauses, and an injunction ordering Mr. Trump to adhere to whatever plan is approved by the court. I suppose it is not beyond the bounds of possibility that some court might be willing to enter such orders.  But the project seems so fraught with difficulty that it strikes me as most improbable.  What district judge, after all, is going to feel comfortable ordering this notoriously bellicose President of the United States to rearrange his world-wide business empire, and then — as would inevitably be required — monitoring his adherence to the court-approved plan for the remainder of his tenure in office.

More to the point, even if a judge were willing to undertake such a task (and get his or her orders sustained in the inevitable appeals), what good would it really do?  If the objective is to place Mr. Trump beyond the reach of the temptation to monetize his office, or to insulate him from efforts by foreign governments to curry favor, that horse has already left the barn. He and his family have been monetizing furiously since the day he announced his candidacy, and foreign governments have already curried favor left and right with hotel bookings and trademark grants and what you will.  Turning off the spigot in the last year or two of Mr. Trump’s term — even if such a thing could be accomplished — seems a fairly pointless exercise. The damage is already done.

If one believes that Mr. Trump has been violating at least the spirit and possibly the letter of the constitution’s anti-corruption protections since the day he took office, then what one wants is not a weak-sauce declaration that he should stop being corrupt, but his removal from the office he besmirches. And the problem with any emoluments lawsuit is that no court can order the president removed from office, even if he is in open defiance of a court order.

Of course — and this is surely the real point of all three of the emoluments suits — if a court finds as a matter of law that Mr. Trump has violated one or the other of the emoluments clauses, that finding could trigger a congressional response in the form of impeachment.  But such a ruling is neither necessary nor sufficient for congress to move.

As Judge Daniels implicitly holds, congress, too, has constitutional authority to determine what is and is not an improper emolument.  Founder Edmund Randolph asserted that a president could be impeached for receiving unpermitted emoluments from a foreign power.  But only congress can decide whether a particular emoluments clause violation amounts to an impeachable offense.

And so, regardless of whether CREW or any of the other emoluments case plaintiffs manage to get a hearing on the merits of their complaints, it all comes back to impeachment.

Frank Bowman