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[personal profile] drwex
Try to keep this quote in your head for the next four years:
[A] plaintiff seeking compensatory relief must have suffered an injury-in-fact, that is fairly traceable to the defendant's challenged conduct, and that is likely to be redressed by a favorable judicial decision.

This quote relates to whether or not someone is eligible to bring a case - called having "standing". It's a test that every court is to use on whether the complaint brought by a plaintiff can be decided on its merits. Many cases don't go forward because the people involved are judged to lack standing to bring the complaint, and it's why organizations seeking to set significant precedents (e.g. equal marriage) wait until they have plaintiffs with good standing arguments.

This is relevant today because there's a lot of - to be frank - bafflegab about suing Trump for this or that violation. Take one example: I think it's reasonably well established that he's arguably violating, say, the Emoluments Clause of the US Constitution. I say "arguably" because such a case would have to be argued in a court of law, decided, and appealed likely all the way to the Supreme Court. There's very little caselaw and relevant precedent about this clause. People who tell you that Trump obviously is or is not violating that clause are engaged in political speech, not legal speech.

What matters, though, is that we're extremely unlikely to see Trump actually brought to trial. Trump's various businesses are likely to continue to be sued - a hazard of any business operation - but Trump himself is not likely to appear in court, even leaving aside the question of Presidential immunity to legal actions. The reason being that it's going to be very hard to show that there is a plaintiff who has suffered the kind of cognizable harm described in the quote.

Let's take the worst possible interpretation of things for Trump: foreign powers deliberately steer their agents and tourists and visitors to stay at Trump properties, golf at Mar a Lago, and so on. The foreign government pays the bills for these things and the profits go directly into Trump's pockets. That would seem to be almost definitionally what a violation of the Emoluments Clause would look like. But who is harmed by that?

The average American? We may be outraged at the President's behavior, but outrage is not standing. A competitor? They might argue a business loss due to such an arrangement, to which Trump's lawyers simply shrug and say "prove it - prove that you would have gotten the business in different circumstances." There may exist a marketplace where a Trump business competes head-to-head with only one other, but in general someone who doesn't stay at a Trump hotel has a wide array of other choices. Ditto golfing or whatever. For any competitor to have standing they'd have to show that Trump's conduct led to their injury. All Trump did was plaster his name on his hotels, which he did well before the election, and let the dough roll in. What conduct, specifically, could the courts remedy?

In fact, I don't think anyone - even Trump's ardent opponents - would argue that customers should be prevented from staying at Trump properties. The problem is really that those monies are going into the President's pockets with, presumably, resulting influence flowing back to the paying foreign entity. That's what the Emoluments Clause was meant to stop.

That brings us back to the only actual check on the President's behavior - the Legislative branch. Violations of the Emoluments Clause could well form part of any articles of impeachment. The odds on that happening are, effectively, zero. And even if they did they're not a lawsuit and not subject to the rules of standing I'm discussing.

We might debate how this highlights a flaw in the US system of governance but even if we preempt the debate and just agree that it is, it's not going to change anytime soon. So the next time you hear or read someone banging on about how Trump should be sued for this-or-that I suggest you do what I do and skip on to the next thing because unless they're a law expert on the level of Professor Tribe they likely have no clue what they're banging on about.
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