Updates

First Amendment: PEN Center v. Trump

Norman Siegelanalysis, free speech

On October 16, 2018, PEN American Center, Inc. filed a complaint at the United States District Court, Southern District of New York, against Donald Trump in his official capacity as President of the United States. PEN America is an association of writers and other literary and media professionals, including journalists who “work for, or with, the Washington Post, Time Warner, CNN, NBC, the White House press corps, and other entities against whom Trump has used, or threatened to use, the machinery of government to retaliate for or suppress their critical speech.”

In the Complaint, PEN America alleges that Donald Trump “directed his threats and retaliatory actions at specific outlets whose content and viewpoints he views as hostile.” (Compl. para 2.) PEN America argues that “President Trump has First Amendment rights and is free to criticize the press vehemently, but he is not free to use the power and authority of the United States government to punish and stifle it.”

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Emoluments: DC Federal Court Holds Plaintiffs Have Standing to Sue

Matt Propperanalysis, emoluments

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.

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Emoluments: District Court Directs Maryland, D.C. Case to Move Forward

Jennifer Hepneranalysis, emoluments

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.”

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Travel Ban III: Supreme Court Reviews Travel Ban

Declaration 17analysis, immigration, travel ban

On April 25, 2018 the Supreme Court of the United States heard oral arguments for the landmark case State Of Hawai’i And Ishmael Elshikh vs. Donald J. Trump, et al in which the State of Hawaii sued the federal government to stop the implementation of Executive Order No. 13,780. The executive order, which is titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”, is President Trump’s third attempt at a travel ban and it restricts the entry of foreign nationals from 6 specified Muslim countries and two non-Muslim majority nations  (Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad). Chad was later removed from the Travel Ban on April 11, 2018. It also suspends entrants from the United States refugee program for specified periods of time.

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Emoluments: Maryland Federal Court Holds Plaintiffs Have Standing in Challenge

Declaration 17analysis, emoluments

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.”

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