Federal Judge Dismisses Emoluments Clause Lawsuit Against Trump
A Judge in New York has dismissed a lawsuit against the President based on two provisions of the Constitution that had never been ruled on before.
A Federal District Court Judge in New York City has dismissed a lawsuit filed against President Trump earlier this year alleging that he is violating a previously obscure provision of the Constitution barring a President from receiving “emoluments” from a foreign government or foreign government official:
In a legal victory for the Trump administration, a federal judge dismissed a lawsuit on Thursday that accused President Trump of violating the Constitution by continuing to own and profit from his business empire.
The complaint, filed this year in the Southern District of New York, said that Mr. Trump’s failure to divorce himself from his businesses had harmed companies or workers who compete against his restaurants or hotels in New York or Washington. By taking advantage of his official position, the lawsuit said, Mr. Trump violated clauses of the Constitution that prohibit a president from accepting any government-bestowed benefits, or emoluments, either at home or abroad.
Judge George B. Daniels of United States District Court in Manhattan found that the plaintiffs had failed to show that they had suffered as a result of specific actions by Mr. Trump intended to drum up business for his enterprises. Even before Mr. Trump took office, the judge said, “he had amassed wealth and fame and was competing against” the plaintiffs.
“It is only natural that interest in his properties has generally increased since he became president,” the judge said. Moreover, Judge Daniels said, customers might be patronizing Mr. Trump’s hotels and his hotels’ restaurants because of price or quality — reasons totally unrelated to his presidency.
Beyond that, the judge found, the emoluments clauses of the Constitution are intended to protect the country against presidential corruption from foreign influences or financial incentives that might be offered by either states or the federal government. They were not meant to protect businesses from competition from presidentially owned enterprises, he ruled.
Were that the case, Judge Daniels said, the Constitution would not have given Congress the power to allow a president to receive a foreign gift or benefit without considering how the president’s business rivals might be affected.
Judge Daniels also said that it was up to Congress, not the courts, to decide whether Mr. Trump had violated the Constitution by accepting a gift or benefit from a foreign government.
“This court will not tell Congress how it should or should not assert its power in responding the defendant’s alleged violations of the foreign Emoluments Clause,” he wrote. “In short, unless and until Congress speaks on this issue, plaintiffs’ foreign Emoluments Clause claims are not ripe for adjudication.”
In a statement, Citizens for Responsibility and Ethics in Washington, a nonprofit legal watchdog group that initiated the lawsuit, called the ruling “a setback.” But Noah Bookbinder, the organization’s executive director, said, “We will not walk away from this serious and ongoing constitutional violation.”
The ruling is believed to be the first in 230 years interpreting what the constitutional framers meant by the emoluments clauses.
Two other lawsuits accusing Mr. Trump of similar violations are still pending. They claim Mr. Trump has illegally profiteered from his businesses in a number of ways, including accepting payments from foreign officials who patronize his hotels and accepting trademark approvals from foreign governments for his company’s goods and services.
The suits are part of a coordinated effort by critics of the president to force Mr. Trump to either sell his business holdings or place them in a blind trust. Mr. Trump’s opponents hope that at least one case will proceed to a stage where plaintiffs will be allowed to demand documentation of Mr. Trump’s finances, including his tax returns.
The underlying lawsuit was based on two separate parts of the Constitution that from their text are clearly aimed at preventing Federal officials such as Members of Congres, Senators, and officials in the Executive Branch from receiving benefits from foreign and domestic governments while in office. The first provision, known as the “Foreign Emoluments Clause,” is found in Article I, Section Nine, Clause 8 of the Constitution and prohibits any Federal official from receiving without Congressional consent “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.” With respect to this provision, it is worth noting that the clause does say that Congress can consent to the foreign emolument, but it doesn’t specify what form that consent must take. The second clause, known as the “Domestic Emoluments Clause,” can be found in Article II, Section 1, Clause 7 and states that the President “shall not receive within that Period any other Emolument from the United States or any of them.” Generally speaking, an “emolument” is defined as ” the returns arising from office or employment usually in the form of compensation or perquisites.” There is no record that these clauses of the Constitution have been raised or litigated with respect to any President since George Washington first took the Oath of Office in 1789 and no record of any legal proceeding in which a court of record has ruled on the application of these clauses in any specific case. In this respect then, Judge Daniels’ ruling is quite literally a historical first in the 230 year history of the Constitution and the first time any court at any level has ruled on either the applicability of the clauses or the question of who may or may not maintain a lawsuit under them. Additionally, it’s worth noting that there is a long history of Presidents of the United States receiving gifts, including gifts that potentially have significant value, from foreign leaders and foreign nations. Typically, these gifts are given as part of official visits by foreign heads of government or heads of state to the United States, or official visits of the President to foreign nations during his time in office. Under a strict reading of the Foreign Emoluments Clause, these gifts would appear to be barred, but rather than being prosecuted for accepting them previous Presidents have been permitted to receive them as long as they are properly reported by the White House. At the very least, though, this history raise legitimate questions about what the clauses mean and whether President Trump is violating them in the manner suggested by the Plaintiffs in this lawsuit.
It’s worth noting technically speaking, Judge Daniels did not rule that the President has not violated the foreign emoluments clause. Instead, he ruled that these Plaintiffs did not have the standing to bring such a claim. As Lyle Denniston notes, though, he did so by interpreting the emoluments clause in such a way as to essentially foreclose any party from having standing to bring a legal claim against a President for violation of this clause:
While the judge ruled that the case could not proceed because the challengers could not show that they had been directly harmed by Trump’s business interests or that their lawsuit could cure any harm they did suffer, that result was made necessary by how he interpreted the two so-called “emoluments” clauses in the Constitution’s Articles I and II.
The Article I clause provides that the president get a salary but bars the occupant of the office from receiving any gift or compensation from a government of any U.S. state. The Article II clause bars the president from accept any gift or other financial or property interest from any foreign government – unless Congress consents.
Because of the judge’s quite-narrow reading of those two clauses, it seemed highly unlikely – if that ruling withstands a planned appeal by the challengers – that anyone in private life could successfully sue any president for alleged violations of those clauses. This was a rather curious prospect, especially since the judge insisted that he was not ruling, one way or the other, on whether Trump had violated either clause.
As to the foreign emoluments clause, the judge ruled flatly that it can only be enforced by Congress, and not by the courts. Since the clause assigns Congress the task of deciding whether to allow a president to receive any gift or compensation from a foreign government, it is up to Congress to police that potential activity, the judge declared.
He implied that the courts might have a role to play if, someday, a conflict arose between Congress and a president over a claimed violation of that clause and the courts were called upon to sort that out, but that scenarios would not appear to leave any opportunity for private enforcement of that clause.
As to both of the clauses, Judge Daniel said that neither protects business interests from commercial competition from a president’s businesses. “Nothing in the text or history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition,” the judge wrote.
And, even if the rival business operators could show they had been harmed while operating in competition with presidential businesses, judges would not be able to remedy that harm because they could not determine what forces in that market had causes their commercial injury, the judge concluded.
The decision that the CREW organization and the rival business operators lacked “standing” to sue Trump was, itself, a constitutional conclusion, because Article III limits the power of federal courts to decide only live cases or controversies, and the courts have said that means no lawsuit can go ahead unless there is proof of injury, proof that the injury was caused by the party that had been sued, and proof that a victory in court would remedy that injury.
Is Judge Daniels correct in his reading of the two emoluments clauses? Well, given the fact that he’s apparently the first Judge in the history of the United States to issue any kind of ruling on either of these Constitutional provisions it’s hard to say that he’s per se wrong. Additionally, there’s not much documentary evidence from the debates over the Constitution at the 1787 Convention that gives any indication of what the Founders intended to accomplish with these two provisions. The most that can be said is that they were intended to shield the President and other government officials from being influenced by gifts from foreign or domestic governments in ways that could have an impact on their votes or decision making. Based on the wording of both clauses, it seems clear that they were largely concerned with direct gifts to an office holder, though, which is somewhat different from what’s being alleged in the cases that have been brought against the President under these provisions. Essentially, these cases argue that the fact that the President has not fully divested himself of his positions in The Trump Organization, its various subsidiaries, and its properties around the world mean that the potential exists that his decision making could be influenced by the fact that foreign and domestic governments may choose to do business with Trump entities in the belief that doing so will benefit them in some way since it would potentially benefit the President personally. Based on the way Daniels has ruled in this case, though, essentially nobody would have standing to file a lawsuit based on an alleged violation of these clauses by either a Congressman, Senator, or Executive Branch official.
This is hardly the end of the matter legally, of course, CREW and the other Plaintiffs in this lawsuit have already stated that they will appeal this matter to the 2nd Circuit Court of Appeals, and that case will likely be briefed, argued, and decided in the coming year. Additionally, there are at least two other lawsuits out there regarding the President and the emoluments clauses. One was filed by the District of Columbia and Maryland and is pending in the U.S. District Court for the District of Maryland, while the other was filed in the U.S. District Court for the District of Columbia by a group of Democratic Members of Congress. As I discussed in the respective posts I wrote back in June when those lawsuits were filed, there are strong arguments that neither the individual states nor Members of Congress and the Senate have any more standing to bring claims under these clauses than the individual Plaintiffs in the CREW case did. If this opinion stands, that would most certainly be the case and it would be up to Congress to pursue emoluments clause violations as a dispute between the two political branches.
Here’s the opinion:
Crew Et Al v. Trump Opinion by Doug Mataconis on Scribd
Denture – Donnie’s competition doesn’t have the standing to stop this obvious corruption, only Congress does.
From the ruling:
In choosing not to do so Congress is telling Don-the Con, “…take all the quid pro quo that you can…’.
It’s mourning again in America.
It will be interesting if historians are going to see the Trump’s 4 year run as a very thinly disguised period of looting, enabled by this president, unanimously supported by congressional Republicans, and in service to the multi-billionaire conservative donor class.
All of this – the tax ‘reform’ bill, and much more – is much like late 19th century America, the Gilded Age, wherein Robber Barons and other magnates would have their emissaries would go up to places like Albany with satchels and suitcases of cash and buy off legislators on the spot.
It’s not as if we didn’t see this coming.
62 million people voted for it.
I think someone needs to go back to the history books if they think “Gilded Age” references only apply to Donald Trump.
Just remember how the Gilded Age came to it’s ignominious end…and prepare yourself.
A question for the experts here. Back when Hillary was being considered for Secretary of State, she agreed that the Clinton Foundation would stop taking foreign “donations” while she was in office. That promise was almost immediately broken, and the Foundation took in millions and millions from countries who had damned good reason to curry favor with our Secretary of State.
Just who might have had standing to sue her and the Foundation under the Emoluments Clause?
@Bob The Arqubusier:
I agree, this is one of those things that I think you need to be a lawyer to understand. My gut tells me Trump is almost certainly doing something wrong, but my head just tells my gut “I have no idea of what’ involved legally – for me having an opinion on this is like having an opinion on ancient Chinese literature without the ability to read Chinese.
But I’ll admit I hope they can nail Trump with it.
@Bob The Arqubusier: Allow me to note how sorry I am that you’ve experienced a downturn in your employment again demonstrated by your increased appearance at our normally quiet little wayside in the road of life.
@Bob The Arqubusier:
Actually that was if she won the Presidential race…but I wouldn’t expect you to care about facts or reality…you never have.
Again, J-E-N-O-S, you were banned…why don’t you just take your nonsense and go away?
@Just ‘nutha ig’nint cracker: I appreciate the sympathy, but you’ve got the reasons wrong. I’m on a medical LOA from work.
With my cardiologist’s approval, and if I can get my cardiac ejection fraction above 18%, I will return to work after the new year.
And I am SO grateful that I have employer-sponsored insurance, and I am not “blessed” to have an ObamaCare policy. Then I’d be begging for sympathy.
@george: My gut tells me Trump is almost certainly doing something wrong, but my head just tells my gut “I have no idea of what’ involved legally – for me having an opinion on this is like having an opinion on ancient Chinese literature without the ability to read Chinese.
I see what you’re saying. With Hillary, it was simple — give money to the Foundation, give money to Bill, get favorable treatment from State. With Trump, if he’s pulling something, it’s way, way too convoluted for most people to grasp.
Which, of course, is remarkable, because as we all know he’s a stupid arrogant moron who merely thinks he’s smarter than everyone else, but is actually really really dumb and only fools the most gullible and naive and simple-minded people.
Oh, and evil, too. Mustn’t forget evil.
In the rather unlikely case the Democrats managed to flip the Congress in 2018, wouldn’t emoluments be a means for attacking Trump?
On other things, how about what the Secret Service pays for stays at Trump properties in several states, or the rents they paid at Trump Tower in NYC?
@Kathy: On other things, how about what the Secret Service pays for stays at Trump properties in several states, or the rents they paid at Trump Tower in NYC?
Joe Biden charged the Secret Service rent for using a cottage on his property. He charged them the same rate he’d charged his previous tenant.
I didn’t see a problem with that, and I don’t see a problem with Trump doing the same. As long as the rate charged is pretty much market normal.
@Bob The Arqubusier:
Really? Not being a lawyer, I didn’t know what to think about Hillary either. Neither did most non-lawyers I know.
Seriously, a lot of things are technical, and its silly to pretend to have an opinion on it. What do you think about the argument that General Relativity and Quantum Mechanics are mutually exclusive? If you have you tried to unify the two (basically, have you tried to come up with quantum gravity)? Can you see why it might be pointless to have an opinion on it unless you’re a physicist?
Most people are surprisingly willing to admit they don’t understand things they’re not experts in. For every person who’s a bar-room expert on DNA (even if they can’t even tell you the nucleo-bases involved), there are ten people who cheerfully admit they know almost nothing about it.
Finance law (see both Trump and Hillary above) tends to look (at least for non-lawyers) like its written in another language.
@Bob The Arqubusier:
Did Biden visit his property nearly every week, or keep his wife and child there for several months?
I’m not claiming this is some sort of scam by the Twit. But he made such a show of donating his salary, while raking in greater sums from the government. It’s like when el Peje here in Mexico boasted about using a compact car to get around, never mentioning it came with a driver, and plenty of armed escorts in effing large SUVs following him around.
@Kathy: I dunno the particulars about Biden, but let me repeat myself, because apparently you missed it: I didn’t see a problem with that.
To me, Creepy Joe/Slow Joe is kind of like Roy Moore. There are plenty of reasons to oppose him. Going after Biden over this is like focusing on “Big Ol’ Perv” for Moore — it’s really poorly substantiated, has tremendous potential for backlash, and gives the guy a pass over some far better lines of attack.
Trump has this amazing superpower — he drives his enemies insane. Literally. They latch on to the most outlandish, most ridiculous, least likely to succeed tactics to attack him. And when they inevitably fail (and, quite often, blow up in their faces), they simply double down on their OUTRAGE!!!!11!!!Eleventy! and find an even stupider line of attack.
To quote Glenn Reynolds, “As I keep saying, if the press and the political opposition — but I repeat myself — were just sober, straightforward, and honest they could beat Trump easily. But then, if they were capable of that, we wouldn’t have gotten Trump to begin with.”
It’s related to his other superpower. He does something stupid, and his enemies react by doing things even more stupid.
One more freebie: think of Trump’s Twitter account as a laser pointer, and his enemies as cats. Watch how he can spend a minute or two Tweeting, and make so many people dance and jump around at his command.
Scientifically, I can’t prove it’s true, but it’s certainly consistent with known facts.
@Bob The Arqubusier :
So because he’s utterly outrageous and pisses off people, you don’t care that he’s abusing tax payers for his own profit above and beyond any sort reasonable limit? Not only is the rent far above what it should be for that kind of real estate, it’s all the incidentals he’s hitting them up for. He nickle and dimed the Secret Service so bad the agency couldn’t pay the people supposed to take a bullet for the man screwing them.
Look, we all speed but someone who consistently does 40 miles over the limit every time they get in the car needs to be addressed. Just because it pisses off the blogging soccer mom you hate doesn’t mean they should get a pass – it’s still a problem. Trump is blatantly stealing from us all and Republican are copacetic with it because it’s funny to watch liberals get upset and be “even more stupid”.
Oh well – laugh it up. Middle and working class America’s about to get the shaft but at least it can die laughing. That’s what counts, apparently.
@Bob The Arqubusier: Politically I think you’re full of sh!t. I think you’re a particularly annoying troll and try to stay the h3ll away from you.
But I’m a retired RN with lots of cardiac experience. You’re on a rough road. Hang in there, now. Take good care of yourself, stay well and merry Christmas.
Hating on you would be a lot easier if you hadn’t said that stuff, damn you.
@Bob The Arqubusier:
You are no doubt correct that your employer-sponsored plan is superior to an ObamaCare policy. But what would you be saying if you had nothing? That is the situation that millions of people have been facing. For those people, ObamaCare really is a blessing (no quotes required).
FYI, visualizing a situation as others experience it is called “empathy”. Google can help you learn about if you are interested.
@JohnMcC: John, I think this is the third time I’ve had nurses save my life, and it’s the second time it was cardiac care, so let me offer my sincerest thanks to you on behalf of your former profession.
If it helps, I was admitted on 12/4 with a BNP of 2527, down to 1757 on 12/6, reached 1251 on 12/8, when I was released. And somehow got it back up to 2265 on the 19th, so I must’ve been doing something wrong. Got the good drugs, though — Imdur, Lasix, Metoprolol, Avorvastatin, clopidogrel, spironolactone, lisinopril, and aspirin. And I’ve only needed the nitro once, when I tried to go back to work too soon.
Oh, and I got a Zoll LifeVest, or as I call it, an “electrified sports bra.” Ain’t triggered once yet.
Not looking for sympathy, however. Wasn’t going to bring it up until “cracker” needed a good smackdown. Just tossed out all those details because I thought you might find it professionally interesting. I’m lucky I live in the same city with a seriously impressive med school and teaching hospital.
And their food seriously doesn’t suck.
@NW-Steve: That is the situation that millions of people have been facing. For those people, ObamaCare really is a blessing (no quotes required).
What they’ve been facing is having to choose between A) a hefty tax penalty for insurance they may not want or need, or B) extremely high premiums for insurance they often can’t afford to use.
The end of the individual mandate will not take away anyone’s insurance. The only people who will lose their coverage will be those who choose to do so.
But I forget. “Choice” is a bad thing for people to have, unless it relates to sex. In any other field, they can’t be allowed to choose because they might choose “wrongly.” People must not allowed to “choose” no insurance or “inadequate” insurance — they need to sign up for and pay what their betters think is “adequate.”
@JohnMcC: And the twit doesn’t realize that with serious cardiac problems he most likely will hit the lifetime benefits limit on his insurance policy…oops Obamacare got rid of those. I’ll say it since he won’t – Thanks Obama!
@beth: I really, really, really don’t want to become the subject of this thread, but let’s just say that that will not happen. Between my medical condition and certain personal beliefs, the most expensive options are off the table.
So, back on topic… the “emoluments” thing is a total non-starter. Not only is it impossible to prove, but it’s far easier to make stick against Hillary.
You really ought to just give up on this whole coup attempt and treat Trump like a conventional president. Pick fights with him on specific issues. Learn to ignore his Tweets and his provocations. Stop treating every single issue as ARMAGEDDON!!!!!!
For God’s sake, look at Alabama. The GOP put up the worst candidate available, and to defeat him, you chose to unleash a weapon that’s taking out your people wholesale.
Or, you know, just keep up what you’re doing. Because that’s just working out gangbusters, isn’t it?
Oh, so you aren’t stiffing medical bills as you did in the past…that’s good to know…
@An Interested Party: Aren’t you lucky the people who run this site don’t take their “no ad hominem attacks” rule seriously?
Plus it gives you the excuse to avoid admitting you don’t have a damned thing to contribute to the topic at hand. So you might as well drag the whole thing down, right?
You must be so proud…
@Bob The Arqubusier: “Just who might have had standing to sue her and the Foundation under the Emoluments Clause?”
Anybody and everybody. Clinton Rules.
@Bob The Arqubusier:
When the intent is to kick the individual market into a death spiral, so premiums are out of reach, then, yes,eliminating the mandate is taking away people’s access to health insurance.
That said, I hope your company doesn’t find cause to fire you — people often have performance problems when they are ill, and many companies like to brush ups against the edge of legality with elderly, sick employees. COBRA is very expensive(and goes away if the company goes under, btw), and I would hate for you to have the freedom to be priced out of health care.
@An Interested Party: Don’t give up so easily; he can still stiff the hospital and doctors on the deductible and copay.
@Gustopher: You must be a kinder person than I am; I would simply attribute Bob’s “having the freedom to be priced out of healthcare” as an ironic twist of fate by that beyotch Karma. ETA: Wouldn’t trouble me at all.
Oh my, that’s rather rich coming from someone who was banned from this website by those same people and has now slithered back in using a new alias…
On the contrary, you and the subject of this post have much in common, like not paying your respective bills…unfortunately, you’re not lucky enough to have landed in the White House like he did, otherwise, you would probably use your position to enrich yourself, much like he is…
I humbly defer to your expert skills in that area…
@Gustopher: When the intent is to kick the individual market into a death spiral, so premiums are out of reach, then, yes,eliminating the mandate is taking away people’s access to health insurance.
So, nice of you to admit that Obamacare is dependent on forcing people to buy something they may or may not want, in a wonderful application of “from each according to their ability, to each according to their need.”
When your “solution” requires depriving people of their choice because you literally can’t afford to let them choose based on their own evaluation of their personal interests, then you really need to find a different solution.
@An Interested Party: Dude, you apparently know more about my personal life than I do. And feel the need to brag about it in a public forum.
That is seriously creepy.
@Bob The Arqubusier: “And I am SO grateful that I have employer-sponsored insurance, and I am not “blessed” to have an ObamaCare policy”
Well, I’m sure that there’s still a co-pay or deductible that you can skip out on again.
@Bob The Arqubusier: You have car insurance? Are you bothered by impounding the cars of those without?
@Bob The Arqubusier: You’re wrong again…you yourself, through various aliases, have revealed the personal details of your life, which show you to be a rank hypocrite, as many of us have pointed out…
@An Interested Party: You certainly live up to your name, “interested.” It’s just seriously disturbing what you find most interesting.
Hey, I got a joke for you:
Ain’t that a knee-slapper?
Indeed it is, especially the part about being banned…of the two of us, that has only happened to you…Merry Christmas, J-e-n-o-s…
Bob, when I read your dreck, I realize its folks like you that dropped the Zyklon B pellets into the gas chambers during the Holocaust because their brains had become inured to reality and reason. Instead, a close minded cloud descends and blocks out any opposing viewpoints, till you get madness and tyranny, then Bergen-Belsen and Dachau.
I’ve always thought its not the leaders that frighten me, its the brainless followers like you who are the real public enemy.
Bob, I am sure, would loved to have been on the Capitol steps, to be able to lick the leader’s azz by offering up his Hatchian praise of the lunatic leader.
When people say “it can’t happen here”, let them sample the wingnut ramblings of Trump’s followers as a warning that it can easily happen here.