2018 continued to be a tumultuous and troubling year for Americans who believe that our Constitution protects us from violations of free speech, free press, due process, equal protection under the law, and the arbitrary power of government to usurp the rule of law. In 2018, the federal courts demonstrated again that they serve as the safety valve, checking abuses of power by the executive branch of government, including notably President Donald Trump and his administration.
More than one thousand Americans from forty different states have joined together in declaring independence from the policies and practices of President Trump. They anticipated that President Trump and his administration would violate basic American values and are documenting the major federal lawsuits challenging the President and his administration.
On September 28th, 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 25th, 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.