emoluments

The U.S. Court of Appeals for the District of Columbia ruled this month that 215 members of Congress lacked the legal standing to sue President Trump for violations of the Foreign Emoluments Clause of the Constitution, reversing a district court decision from September 2018.

The 3-0 decision issued on February 7 was limited to the issue of whether the lawmakers had legal standing to file their original 2017 lawsuit. The ruling in Richard Blumenthal, et al., v. Donald J. Trump, in his official capacity as President of the United States of America held that the 215 members of Congress lacked that standing and remanded the case to the district court “with instructions to dismiss the complaint.”

The U.S. Court of Appeals has vacated a lower court decision that blocked the Emoluments case against President Trump. The September 13 ruling in Citizens for Responsibility and Ethics in Washington v. Trump, reversed the United States District Court for the Southern District of New York (George B. Daniels, J.), which had granted the president’s motion to dismiss the action based on the Domestic and Foreign Emoluments Clauses of the Constitution.  The Second Circuit vacated and remanded this decision in a decision written by circuit judge Pierre N. Leval. Judge John M. Walker, Jr.  issued a dissenting opinion, largely drawing on a similar case in the Fourth Circuit.

The plaintiffs, some of whom are hoteliers and restaurant-owners, allege that “they directly compete with the president’s establishments for foreign, state, and federal government clientele” and have lost business after November 2016, according to the Second Circuit’s ruling. The plaintiffs also claim that the president has been “implicitly soliciting the patronage of government officials” and that “he favors governments that patronize his businesses” and that this had the desired effect – governments and diplomats spending money at the Trump establishments. The president’s receipt of the revenues would thus violate the Foreign and Domestic Emoluments Clauses. The plaintiffs seek declaratory and injunctive relief, viz. a declaration from the courts that the president’s conduct violates the constitution and an injunction to stop this behavior and release financial records.

On July 10, 2019, the judges of the fourth circuit Court of
Appeals ruled against the District of Columbia and the State of Maryland in
their lawsuit against Donald Trump for violating the Foreign and Domestic
Emoluments Clauses of the U.S. Constitution.

Judges Paul Niemeyer, A. Marvin Quattlebaum, and Dennis Shedd
concluded “the District and Maryland’s interest in enforcing the Emoluments
Clauses is so attenuated and abstract that their prosecution of this case
readily provokes the question of whether this action against the President is
an appropriate use of the courts, which were created to resolve real cases and
controversies between the parties” (Opinion, 35-36). The court granted
President Trump’s writ of mandamus, and reversed the District Court’s ruling.

On September 28^th, 2018, Judge Emmet G. Sullivan of United States District Court for the District of Columbia denied-in-part President Trump’s Motion to Dismiss and found that the plaintiffs have standing to sue in Senator Richard Blumenthal et al., v. Donald J. Trump, in his official capacity as President of the United States. The plaintiffs, 201 minority members of Congress led by Senator Richard Blumenthal, allege that President Trump violated the Foreign Emoluments Clause, which states that “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 Sullivan ruled that “each time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury—the deprivation of the right to vote on whether to consent to the President’s acceptance of the prohibited foreign emolument—before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.” Thus, Judge Sullivan ruled that plaintiffs have standing to bring the claims because they adequately alleged that their injury-in-fact can only be “redressed by a favorable judicial decision”—not a legislative remedy.

On July 25^th, 2018, a United States District Court Judge in Greenbelt, Maryland ruled that the Attorneys General of the State of Maryland and the District of Columbia could move forward in their lawsuit against President Trump. The Attorneys General claim that the President’s actions in relation to his continued involvement in the Trump Organization—specifically the Trump Hotel—violate the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.

While the Foreign Emoluments Clause bans, without Congressional approval, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” the Domestic Clause bars the President from receiving any benefits other than his compensation from federal, state, or local governments. The Plaintiffs in this case have “convincingly argued” that an “emolument” in both the Foreign and Domestic Emoluments Clauses, is any “profit,” “gain,” or “advantage,” that one might receive. While the President claims that the Plaintiffs have interpreted the term “emolument” too broadly, the presence in the Emoluments Clauses of modifiers such as “any” and “of any kind whatever” indicates that “the term was meant to have the widest scope and applicability.”

On March 28, 2018, a Maryland District Court denied-in-part President Trump’s Motion to Dismiss a lawsuit (The District of Columbia and The State of Maryland v. Donald J. Trump, individually and in his official capacity as President of the United States), alleging that Trump violated the Foreign and Domestic Emoluments Clauses. The case was filed by the Attorneys General of the District of Columbia and Maryland. The plaintiffs argue that Trump’s emoluments violations harm the sovereign, quasi-sovereign, proprietary and parens patriae interests of Maryland and the District of Columbia. In addition, the plaintiffs argue that Trump’s violations harm the interest of Maryland and D.C. in “protecting their economies and residents.”

In late December, a federal judge in New York dismissed a lawsuit claiming that President Trump is violating the Emoluments Clauses of the Constitution. The Foreign Emoluments Clause precludes a president from receiving any gifts or compensation from foreign governments without the consent of Congress. The Domestic Emoluments Clause “provides that the president’s compensation for his services as president shall not change during his term in office and prohibits him from drawing any additional compensation or salary from the federal or state governments.” Dec 21, 2017 Memorandum Decision and Order (MDO), p. 5. (For more on the Emoluments Clauses, see our June 22 update.)

In the lawsuit, individuals in the hotel and restaurant business claim that they compete with president Trump’s businesses and are at risk of losing customers to Trump Organization hotels and restaurants. Foreign governments and diplomats, they argue, frequent Trump Organization establishments, including Trump’s Washington D.C. hotel located across from the White House, in an effort to curry favor with the President.

Article I, Section 9, Clause 8 of the Constitution of the United States, now commonly referred to as the “Foreign Emoluments Clause,” is the subject of three federal lawsuits which challenge President Trump’s alleged receipt of financial benefits from foreign governments and their representatives. The clause states that “no person holding any office of profit or trust under them, shall, without the consent of Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince or foreign state.” In a nutshell, Congressional approval is required when a federal officeholder is offered something of value. There is little controversy that the clause applies to the president.