In a lawsuit filed the Monday after inauguration, the ethics group CREW (Citizens for Responsibility and Ethics in Washington) grabbed a few headlines by formally taking Trump to court. In its filing, CREW asked a federal court to rule that US president Donald Trump’s business dealings violate the Constitutional clause forbidding officeholders to accept “emoluments or presents” from foreign governments. CREW has some famous law professors willing to lend their name to the case, including Larry Tribe of Harvard, Erwin Chemerinsky, and Zephyr Teachout. Too bad it doesn’t have a place for them to stand.
That’s not a comment on the lawsuit’s ultimate merits, but on its lack of legal standing—the right to bring a lawsuit against the president. To show standing, it must prove that CREW itself has suffered some sort of direct, concrete, and particular injury not borne by the rest of us. To quote the New York Times analysis, CREW plans to argue that “it has suffered harm by having to divert resources from other work to monitor and respond to Mr. Trump’s activities.” Whatever the politics, this is just bad legal judgment.
In a recent CNN interview Stanford law professor Michael McConnell, formerly a federal appeals judge, called that theory “just so silly that I can’t believe they put it on paper.” The point of standing law is to keep anyone who feels like it from coming into court to sue. And no one forced CREW to pay attention to this issue. It could have stayed home and watched Netflix.
CREW invokes a couple of precedents from the early 1980s by which courts allowed fair housing groups to sue landlords over discrimination. But those cases represent a sort of high water mark of standing principles from which the federal courts, including the liberal wing of the current Supreme Court, have generally receded.
While this particular case is unlikely to prevail, the wider problems for Trump on this issue aren’t going away. The court cases still to come could cause him vexation and force him to play defense, even if, for reasons of constitutional structure, judges are unlikely to land a knockout blow.
The ACLU, while biding its time, is seeking to build a stronger standing case by seeking out a hotel or other competitor that can plausibly claim harm. This could mean, for example, it lost business because a foreign government patronized the Trump Organization in an allegedly biased way. Another possibility would be to find a litigant who wants to back out of a Trump-related business deal.
In its relevant bits, the Emoluments Clause holds that “no Person holding any Office of Profit or Trust under [the US], shall, without the Consent of the Congress, accept of any present [or] Emolument [from any] foreign State.” Few cases have reached the courts clarifying the scope of these terms, and although some light is shed by advisory opinions written by past White House lawyers, much remains uncertain. Does only a stipend or salary, or a payment in compensation for the official’s direct time or attention, count as an emolument? Or does the term extend even to, say, an arms’-length hotel room rental at fair price? What if the payment is going not to an officeholder personally, but to a business he owns in part, or to a relative? And who exactly counts as a foreign state actor?
Were these questions to reach a final resolution in court, I suspect many or most would break favorably for Trump. But to reach truly safe ground, given the complexity of his business dealings, he would need a clean sweep of nearly all of them.
Two aspects of the Clause in particular must be causing Trump’s lawyers angst: It’s worded as a no-fault provision, and it sets no minimum threshold. That means a present or emolument could tip the scales, even if it’s meant innocently on both sides and is very small. And the realities of an international hospitality and real estate business make for lots of possible triggers both large and small.
Even if Trump fails to comply with the Clause, however, the courts aren’t obliged to provide a broad remedy. A case that manages to get over the standing hurdle might result in a narrow ruling ordering the president’s business, say, to refund a single disputed payment. Before resorting to wider injunction powers, as groups like CREW urge, judges would need to consider what’s known as the political question doctrine under which the courts have chosen to say out of some issues they see as better suited for other branches of government—or for voters—to address.
For example, the courts shy away from deciding many questions of war, peace, and foreign policy, because the Constitution entrusts most of those issues to the executive. They turn away many lawsuits challenging Congress’s internal procedures, because those are for Congress itself or the voters to fix if mistaken. And in particular, they tend to stay away from anything that looks too much like impeachment of an incumbent official, since the Constitution explicitly gives the Senate sole power to try cases of impeachment.
In this case, the Clause itself points to Congress as the branch expected to take the lead in enforcing its terms. Only payments taken “without the Consent of the Congress” are forbidden, which means lawmakers can immunize all or any violations simply by voting consent. (Although senate Democrats might have something to say about that.) At the same time, the branch that’s supposed to take the lead regarding personal (as distinct from official) misconduct by a president is again Congress, through its powers of impeachment and trial.
Ultimately for Trump, the emoluments issue is a good reason to tread carefully in court, but an even better reason to stay in the good graces of Congress.