Federal court on CREW emolument suit against Trump: Come on, man

Remember all that hyperventilating over the Emoluments Clause and Donald Trump’s business empire? Politically, it made good copy. Legally, however, the arguments fell flat, at least on their first deployment. Federal district court Judge George Daniels dismissed a lawsuit yesterday that argued Trump was violating the Constitution and conducting unfair business practices by refusing to divest his holdings after the election:

In a legal victory for the Trump administration, a federal judge dismissed a lawsuit on Thursday that accused President Trump of violating the Constitution by continuing to own and profit from his business empire.

The complaint, filed this year in the Southern District of New York, said that Mr. Trump’s failure to divorce himself from his businesses had harmed companies or workers who compete against his restaurants or hotels in New York or Washington. By taking advantage of his official position, the lawsuit said, Mr. Trump violated clauses of the Constitution that prohibit a president from accepting any government-bestowed benefits, or emoluments, either at home or abroad.

Daniels shot down two claims yesterday against Trump and his family. The first, filed pro se by someone named William Weinstein, didn’t take much effort to shut down. Daniels ruled that Weinstein doesn’t actually make any claims under the Emoluments Clause, that it doesn’t involve a breach of contract (rather, just arguably unfulfilled campaign promises), and in fact never asserts a justifiable legal cause of action. Daniels quickly dispenses with Weinstein’s nuisance lawsuit by granting the motion to dismiss.

The second and more notable lawsuit came from Citizens for Responsibility and Ethics in Washington (CREW), the left-leaning public accountability activist group, restaurant workers union ROC, and a restaurant owner. The plaintiffs prepared their case better and specifically rested it on the Emoluments Clause and allegations of unfair competition, with the latter allegedly causing real economic harm to workers in the hospitality industry. It also alleges that foreign governments using Trump properties amount to payments of emoluments, especially since his status as president makes those properties more attractive.

Daniels takes this complaint more seriously — to a point. Daniels picks off ROC and the restaurant owner for lack of standing, saying that they did not and cannot prove that any economic damage is caused by Trump at all, let alone any unfair business practices simply resulting from his election. Later, Daniels also rules that CREW has no standing to sue, not even on the Emoluments Clause claim, having failed to establish any specific damage to itself or its members. “CREW fails to allege either that Defendant’s actions have impeded its ability to perform a particular mission-related activity,” Daniels writes, “or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant’s conduct.”

But even if it had standing, Daniels rules, the Emoluments Clause claim would still be bogus:

Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant’s conduct. As such, this case presents a non-justiciable political question. …

In Goldwater v. Carter, 444 U.S. 996 (1979), Justice Powell articulated a test to be used in cases involving a confrontation between the legislative and executive branches to determine whether the issue presented was ripe for review, which is particularly instructive here. In that case, members of Congress brought suit against President Carter after he announced his intention to unilaterally terminate a mutual defense treaty between the United States and Taiwan. Goldwater v. Carter, 617 F.2d 697, 700-01 (D.C. Cir. 1979), vacated, 444 U.S. 996 (1979). The plaintiffs there claimed that such action, without ratification from the Senate, infringed upon Congress’s treaty power. Id. The D.C. Circuit reversed the lower court’s ruling and held that the President did not exceed his constitutional authority in terminating the treaty. Id. at 709.

In remanding the case with instructions to dismiss the complaint, Justice Powell stated that “a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority.”

Daniels concludes:

If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, “it is not [this Court’s] task to do so.” Goldwater, 444 U.S. at 998. This Court will not tell Congress how it should or should not assert its power in responding to Defendant’s alleged violations of the Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs’ Foreign Emoluments Clause claims are not ripe for adjudication.

Interestingly but perhaps predictably, Daniels’ ruling on the Emoluments claim sticks narrowly to standing and justiciability. It doesn’t delve into whether a hotel bill counts as an emolument, or the debate about whether a president can still own businesses while in office without running afoul of the Constitution. Daniels understandably notes that those are questions for the political realm to handle, not the courts, at least not at first. Until Congress acts on the Emoluments clause, the judiciary has no role.

Granted, this is one federal court, and this ruling will not have precedential weight until it is considered and upheld on appeal, assuming CREW keeps pushing it. However, Daniels’ reasoning is solid and based on clear precedent on justiciability, and it’s very likely that other federal courts will tell plaintiffs the exact same thing — including members of Congress frustrated by their political inability to force action in the legislature. Just as with all other issues regarding impeachment, the House has to determine what constitutes a “high crime or misdemeanor,” not federal judges based on gadfly lawsuits.