Emoluments: DC Federal Court Holds Plaintiffs Have Standing to Sue

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” (Art. I, Sec. 9, Cl. 8).

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.

The plaintiffs “allege that because the President has denied them the opportunity to give or withhold their consent, he has injured them in their roles as Members of Congress, and that they cannot force the President to comply with the Constitution absent a judicial order.” President Trump, on the other hand, “argues that this is an intra-branch dispute which does not belong in federal court because the plaintiffs’ remedy is to convince a majority of their colleagues in both Houses to pass legislation addressing the President’s ability to accept prohibited foreign emoluments.”

Judge Sullivan refuted President Trump’s claims by stating that the President mischaracterized the alleged injuries: “the votes contemplated by the President are not votes to consent, or not, in response to the President’s request for consent prior to his acceptance of a prohibited foreign emolument. Rather, these are votes on the issue of emoluments. Injury to their power to legislate on the issue of emoluments is not the injury plaintiffs allege.”

Plaintiffs seek declaratory relief “in the form of a declaratory judgment stating that the President is violating the Foreign Emoluments Clause when he accepts emoluments from foreign states”—via his “more than 500 separate entities–hotels, golf courses, media properties, books management companies, residential and commercial buildings … airplanes and a profusion of shell companies set up to capitalize on licensing deals”—”without first seeking the consent of Congress.” Moreover, plaintiffs seek injunctive relief “in the form of a Court order enjoining the President from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of Congress.”

Another Emoluments case, brought by the Attorneys General of DC and Maryland, is working its way through the courts. And stay tuned for updates as both Emoluments challenges proceed.

See also, our January 2 update, “Emoluments: December Ruling,” when a New York Federal Judge dismissed an Emoluments challenge by ruling that the plaintiffs—restaurant and hotel owners and Citizens for Responsibility and Ethics in Washington (CREW)—lacked standing.