drwex: (Default)
[personal profile] drwex
Three separate lawsuits against Trump for violation of the Emoluments Clause. tl;dr I think all three are really wild long shots, but that's how new law gets made and there are some smart people involved here, so maybe. This case could also have interesting implications. This turned into a larger-than-expected entry, so I'll cut it into sections.

The first suit came from private citizens alleging harm to themselves(*); the second from attorneys general alleging harm to the citizens of their states. Now 196 members of Congress have joined a suit organized by John Conyers. This may be the most interesting of the three for two reasons. First, it alleges a violation that no other suit can allege - to wit, that the Emoluments Clause forbids the President from accepting foreign monies without the consent of Congress.

Trump not only hasn't sought consent for his known emoluments; he also has taken steps to conceal the extent of his foreign dealings. The suit argues that in the absence of disclosure of same, Congress can't possibly grant approval. They further allege that there is no other legal remedy available to them, since they can't draw up legislation on matters they don't have information about. Specifically:
Without a judicial order, Plaintiffs cannot force Defendant to obey the Constitution’s text by seeking their consent before accepting such foreign emoluments.

In effect, the plaintiffs (Congress) are asking the Court to step in and enforce the laws (Constitution) because they cannot do so otherwise.


The complaint itself is interesting reading, drawing heavily on originalist writings. To some degree that's necessary because there isn't a huge amount of caselaw in this area and to another degree this is clearly aimed at Justice Gorsuch. If he can be persuaded this is a valid suit he would be a powerful voice and possibly a tipping vote. The complaint also seems to anticipate DoJ's response in earlier suits, which has been to try and interpret Emoluments narrowly, claiming that simply getting money isn't a violation unless it involves some kind of quid pro quo.

That claim by the DoJ is aimed squarely at Chief Justice Roberts, who made serious waves back in 2014 when he significantly narrowed the definition of "corruption" to be just "cash-in-hand bribery". Specifically, Roberts and four colleagues ruled that if there wasn't a quid pro quo - if you can't prove I did something specifically for your benefit in return for this envelope of cash - then no corruption exists. Without a direct exchange of "official act for money" everything is hunky-dory. To try and head this off, the new suit lists specific acts that can be seen as quid pro quo exchanges; for example, the President changed his tone on Turkey in exchange for that country calling off investigation of Trump properties.

Having laid out a unique case for this suit, it remains to be seen just how far courts are willing to go. I remarked last time that I would find it extraordinary for any court to order Trump cease and desist from activities that were found to violate the Emoluments clause, which would seem to be the only remedy that would satisfy the Attorneys General's complaint. I find it much more likely that a court would agree that Trump must submit his business activities to Congressional scrutiny. Courts in the past have been willing to step in to break a stalemate between the other two branches, particularly when it does not involve making new law. I suspect this supine Congress would rubber-stamp Trump's business dealings anyway, but it would be a blow to Trump's ego to have to ask Congress, and such ego blows seem intolerable to him.


The second interesting thing about this suit is that it may end up setting a novel precedent, which may serve generally to rein in the increasingly imperial presidency that men from both parties have enjoyed. I think at least as far back as Reagan (Grenada, Nicaragua, etc.) Presidents have been getting us into military conflicts without so much bothering to ask Congress for its approval(**). The language of the Constitution's War Powers clause is remarkably similar to the Emoluments Clause in that it specifically vests power with Congress and requires the President to get approval. I would not find it a stretch to apply a decision against the President in this case to other situations where the President just goes ahead and does things for which he's supposed to get Congressional approval.

(*) And as expected the Justice Department's response has come back as "these people haven't suffered any injury that would give them standing to sue". This is important because if there's no standing then the case can't even go to discovery.

(**) Technically we never declared war in Korea, but generally Presidents have gotten various forms of authorization for the use of military force. And again there's a yawning chasm of lack of legal precedent in this area.

Date: 2017-06-15 06:13 pm (UTC)
mangosteen: (Default)
From: [personal profile] mangosteen
It's going to be very interesting if the DoJ pushes hard on "no standing", because that's the only solid defense they have.

As you've mentioned before, third-party standing is a very tough bar to clear, and (I'm guessing) the only way that's going to happen here is if the plaintiffs successfully claim that Trump has structured his affairs so that no one can have standing.

Date: 2017-06-16 02:14 pm (UTC)
quietann: (Default)
From: [personal profile] quietann
I am following your summaries with interest... These are very complicated cases.

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