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The Ethics Suit Against Trump: a Waste of Star Legal Power?

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Photo by Mark Taylor | CC BY 2.0

Photo by Mark Taylor | CC BY 2.0

 

After Trump’s first weekend in the White House, he awoke Monday morning to an unprecedented hangover: a lawsuit filed against him by legal luminaries of the left.

Many people might have been cheered, as, undoubtedly they figured the suit attacked the new president because he’s racist, xenophobic, was about to deport Muslims, was poised to break ground on the wall between the U.S.-Mexico border, and is a walking war crime about to bomb ISIS and maybe even NATO.

Strangely, the suit alleges none of those things, but charges instead that President Trump is violating the Constitution because…. Foreign governments have booked hotel rooms and office space in Trump properties and could influence Trump business interests in numerous nations, and Trump will receive money from foreign government-owned TV stations who want to show The Apprentice.

Pardon me for, after all the months of fear and hatred directed at Trump and what he represents and his nefarious plans, finding the suit anticlimactic and quotidian. Well, maybe not quotidian, as the suit rests on the arcane ground that President Trump has violated the Constitution’s little-known and virtually never invoked Foreign Emoluments Clause.

If you never heard of the Foreign Emoluments Clause before now, and if you don’t know what “Emoluments” means (gift, compensation, perquisites, advantages), you’re not alone. After all, the clause is included in Professor Jay Wexler’s humorous and informative book, The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions (2011). Even the plaintiff in this suit against Trump, Citizens for Responsibility and Ethics in Washington (CREW), describes in its Complaint how it had to conduct significant legal research to study the Clause.

Here is the wording of the Foreign Emoluments Clause:

No Title of Nobility shall be granted by the United States: And 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.

Article I, Section 9, Clause 8.

The suit is being brought, again, by an organization called Citizens for Responsibility and Ethics in Washington (CREW), which, in the complaint, describes itself as “a nonprofit, nonpartisan organization founded in 2002 that works on behalf of the public to foster an ethical and accountable government and reduce the influence of money in politics.” It was founded by two former ethics lawyers for Presidents George W. Bush and Barack Obama: Richard W. Painter (Bush) now vice chair of CREW and also a Professor at University of Minnesota Law School, and Norman L. Eisen (Obama), chair of CREW and a Brookings Fellow.

CREW’s lawyers are legal superstars: Harvard Law professor Laurence Tribe, UC Irvine Law Dean Erwin Chemerinsky, Fordham Law professor and former political candidate Zephyr Teachout, and Deepak Gupta and others from Gupta Wessler PLLC, a Washington, D.C. appellate law firm of highly credentialed lawyers.

But the suit must clear some hurdles before these legal eagles ever get to cross-examine President Trump and make him admit he’s Putin’s poodle.  It may be that no one can file suit under the Emoluments Clause.  And even if someone can, CREW may not be that someone: it may lack “standing” to sue.

Standing to Sue?

Not just anybody has a right to sue someone in federal court. The person must have “standing to sue.” There are many aspects to standing, including whether the law allegedly violated permits a person to sue; if the suit might impair the work of other government branches; or if the plaintiff has actually suffered an injury that’s “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.”  Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).

The Clause describes an interplay between Congress and the persons holding office (which presumably includes the President — an open question).  A constitutional violation occurs only if an officer accepts any emolument, etc. without Congressional consent. How does Congress consent? A majority vote of both houses? Two-thirds? Or is inaction consent? In any event, is there any room here for private citizens or nonprofits, or the courts?

A judge might not wish to second-guess the President and Congress.  The Supreme Court stated recently: “[o]ur standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Clapper 133 S. Ct. at 1147.  The court can’t “usurp the powers of the political branches.” Id. at 1146.

Citizens for Responsibility and Ethics in Washington v. Donald J. Trump appears to run afoul of such concerns, as, apparently, CREW is asking the court to rule that President Trump is violating the Foreign Emoluments Clause, and, apparently, to substitute its own judgment for Congress’s. If Congress consents to the president receiving emoluments, can a court to reverse that? If Congress withholds consent but does nothing, and the president continues accepting emoluments, can a court interfere?

CREW’s other big problem relating to standing is that it appears to have suffered no injury sufficient for standing – despite the complaint’s vivid allegations. The Supreme Court has stated: “We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not [suffice]. Lujan v. Defs. of Wildlife, 504 U.S. 555, 573–74 (1992).

CREW summarizes its injury:

As a direct result of Defendant’s refusal to address these and other violations  of  the Foreign Emoluments Clause, CREW has been significantly injured.  CREW has been forced to divert essential and limited resources — including time and money — from other important  matters  that  it  ordinarily  would  have  been  handling  to  the  Foreign  Emoluments  Clause  issues  involving   Defendant,   which   have   consumed   the   attention   of   the   public and   the   media .   Moreover, without declaratory and injunctive relief from this Court, CREW will continue to suffer this diversion and depletion of resources for the remainder of Defendant’s administration.   CREW will essentially be forced into the role of litigating and educating the public regarding Defendant’s Foreign Emoluments Clause violations, rather than continuing its mission of serving as a watchdog with respect to all ethical issues involving all parts of our government.

(Complaint, para. 8.)  The complaint later elaborates that CREW has been unable to answer all media requests and has had to hire a sernor attorney.

Can a self-appointed watchdog be “injured” by deciding, voluntarily, to tackle a particular issue? Who’s “forcing” CREW to do this? Certainly not President Trump. That such a group might try to stop a president is not the sort of harm the Foreign Emoluments Clause seeks to prevent.

To say some of the harm comes from pursuing this litigation seems like a reason not to litigate in the first place, rather than an argument for standing.  Lots of people in all sorts of cases where they’re indisputably harmed find themselves unable to afford to litigate. I see that almost every day in my practice. Then again, maybe I can sue CREW under the Foreign Emoluments Clause for filing this lawsuit, as I’ve been “forced” to write this article, which has diverted my energies and resources from my other work.

Moreover, are these developments for CREW even injuries? CREW’s website proclaims that the group “uses high-impact legal actions to target government officials who sacrifice the common good to special interests.” CREW’s sudden rise in prominence due to its action on the Foreign Emoluments Clause seems like a boon, not burden. And CREW’s not the only social justice nonprofit short on resources. These “injuries” sound like great grounds for an appeal … to donors.

It turns out CREW didn’t pull its injury argument out of thin air (or somewhere else), but from Supreme Court precedent. In its complaint, CREW cites two cases to support its standing, but both were specifically decided under the Fair Housing Act’s lenient standing standard, and only one is from the U.S. Supreme Court. That’s a big problem.

In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the high court ruled (among other things) that the nonprofit Housing Opportunity Made Equal (HOME) had standing to sue an apartment complex owner under the Fair Housing Act.  The apartment complex owner’s allegedly steering away black people looking for apartments drained HOME’s resources, as HOME had to counteract the racially discriminatory practice.  But as the high court noted, the Fair Housing Act empowers private individuals to sue private violators, and in that context (unlike in most others), a plaintiff can gain standing by asserting the most minimal harm. HOME was harmed because it had to expend more resources to help black people find a place to live.  Presumably, HOME couldn’t just decide to avoid these costs by helping only white people.

The situation in Havens Realty is a far cry from a group suing the President of the United States for conduct under an arcane constitutional clause that gives Congress, not private actors, authority to consent or not to the president’s conduct, a clause that may not even have been violated, and where any purported violation can be remedied by Congress’s consent.

Surprisingly, CREW and its lawyers appear to ignore far more apt binding precedent. In Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992), the Supreme Court stated that it’s especially wary of cases where citizens sue the government.  “We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not [give that plaintiff standing].” Lujan, 504 U.S. at 573–74.

In Lujan, the plaintiff environmental groups were deemed not to have standing.  They sued the Secretary of the Interior under the Endangered Species Act, asking the court to force him to reverse the change of a rule that had required agencies doing federally funded projects all over the world to consult with the Secretary about avoiding destroying endangered species’ habitats. The change limited the geographic reach of the rule to just the U.S. and the high seas.  Projects in foreign countries were now exempt from the consultation requirement, and endangered species there were at risk.

The plaintiff nonprofits claimed they were injured because some members intended to travel abroad to observe species that at that point might be extinct.  The Court said the alleged injury was no different from that to anyone else with a professional interest in these animals.

It’s hard to see how CREW’s interest goes beyond that of other citizens.  Even CREW’s professional interest in battling government corruption probably isn’t enough for standing.

CREW et al. also appear to ignore the more recent Supreme Court opinion in Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), where the Court tossed out a suit for lack of standing where lawyers and various human rights and media organizations argued they were harmed by a revision to FISA that allowed surveillance of non-U.S. persons outside the U.S. The rule doesn’t require that the government have probable cause, or for the government to specify how and where it would conduct the electronic surveillance, to get a warrant. The plaintiffs argued they had standing because they often had confidential, sometimes privileged contact with people abroad who could be targeted, which hampered plaintiffs’ ability to do their work, and that they’d taken costly measures to protect confidentiality. Some said would need to travel to talk face to face.

The Court held that the claimed injury was too speculative: The government might conduct surveillance under a different law.  It might not target these people. Even if it did, it might not succeed, and even if it did, it might not intercept these plaintiffs’ communications. “In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment,” the Court stated. Clapper, 133 S. Ct. at 1150.

Notably, the Court said plaintiffs “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending … If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.” Clapper, 133 S. Ct. at 1151.

The Clapper Court’s concerns are relevant to CREW v. Trump.  CREW’s argument rests on speculation about “how independent decsionsmakers will exercise their judgment”: President Trump will accept foreign emoluments, and Congress … will consent – or not.  If Congress consents, there’s no violation of the Emoluments Clause. Case closed.  If not, then Trump might stop accepting (and return) emoluments.  Case closed.  Or, Congress will withhold consent, and President Trump will carry on regardless.  In which case Congress … won’t do anything to enforce the Clause – or it will. If Congress succeeds, case closed. If Congress fails, or gives up, or if it just turns a blind eye, a court probably would be reluctant to intervene and substitute its own judgment for Congress’s.  Amidst all that, it’s speculative whether CREW’s alleged harm would persist: It might not continue the battle; it might not still need to divert resources, as there’s probably only so much anyone can learn and tell the media about the Foreign Emoluments Clause and Trump’s alleged violations.

Didn’t CREW et al. see these problems?

Is It Wise to Risk Losing on a Threshold Issue?

What’s going on here? Were CREW, Tribe, et al. wise to file this suit?

The allegations against President Trump are serious. No one wants a President beholden to foreign interests.  But why address those concerns by suing President Trump, especially when it’s not clear that CREW meets the minimum requirement of standing?

There’s a sense here of desperation, of grasping at straws – why would these legal superstars choose such a tenuous tactic unless nothing better was at hand?  In the not unlikely event that the complaint is dismissed, Trump could Tweet: “Defeated leading luminaries of the legal left who filed a vexatious, harassing lawsuit against me. Total losers!”

Why didn’t CREW and the professors seek a plaintiff with a better case for standing? Perhaps they knew there wouldn’t be any, and decided to give this a shot?

A more reliable move would have been to co-write an op ed in the New York Times and then lobby Congress to investigate Trump’s foreign ties. The law professors and ethics experts of CREW could all testify before Congress, helping explain the violations, and caution Congress to withhold its consent to any emoluments. Indeed, last month, Professor Tribe and CREW chair Eisen and CREW vice chair Painter published a white paper available at the Brookings Institute website that heavily relies on Professor Teachout’s scholarship. About a week after the election, Professor Teachout penned an op ed for the New York Times.

Beyond that, lawsuits such as CREW’s appear to perpetuate partisan use of the judicial system. If Hillary Clinton had been elected, some conservative watchdog group (SCREW?) undoubtedly would have filed a similar suit against President Hillary Clinton, given the Clinton Foundation’s promiscuous vacuuming up of foreign funds. Undoubtedly, Tribe, Chemerinsky, and Teachout would not have lent a hand.

There’s wasted opportunity. This suit seems academic, like a law school hypothetical, highfalutin and arcane. It’s a shame these legal eagles aren’t devoting this energy instead to helping regular people against government onslaughts likely forthcoming, or helping provide legal services to the lower and middle classes – many of whom are the very people who supported Trump because they felt ignored and cast aside by the Democrats’ economic policy.

It’s not an either/or, of course, and the issues in CREW v. Trump are important. But bringing such star power to lower-profile but more substantive issues could encourage other lawyers to do the same.  Most lawyers can only just stand back and watch this one.

The suit may be intended as symbolic. But getting your symbolic suit kicked out of court for failing to meet a basic, threshold requirement, could subject the lawyers to ridicule and harsh criticism. Some might even describe the suit as frivolous, which would support Trump’s legitimacy – and his claims that liberal elites are just out to get him, and that they’ll twist the law to do so.

The suit seems at best like a mixture of elite academic preening, PR move, and lashing out after a shocking election loss. At worst, it seems like a tendentious, vexatious, harassing attempt at obstructing Trump, one effort of many, to “delegitimize” him.

I wonder if CREW and its lawyers are gambling that maybe, just maybe, the judges and ultimately a majority of Supreme Court justices will allow their own concerns about Trump (as well as those of other elites and the public) to influence their judgment and conclude that CREW has standing? After all, the justices can work legal magic, and there’s no appeal from their decisions. The outcome of political cases can be unpredictable. Bush v. Gore, 531 U.S. 98 (2000) is the poster child for that. And the national hysteria, at least among liberal elites, is more intense now than it was back then.

That all said, CREW v. Trump threatens to divert energy and credibility from more important suits that will have to be filed protect grave harms to civil liberties and human rights. Lawyers, have patience – there will be many opportunities to sue Trump.  Sad!

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Brian J. Foley is a lawyer and the author of A New Financial You in 28 Days! A 37-Day Plan (Gegensatz Press). Contact him at brian_j_foley@yahoo.com.

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