What Does the D.C. Circuit’s Order In Blumenthal v. Trump Tell Us?

For one thing, there is not likely to be any emoluments discovery in this case in the near future, if at all. For another, we are likely to get a significant legislative standing decision from the D.C. Circuit in the not too distant future.

On July 19, a panel of the D.C. Circuit (Judges Millettt, Pillard and Wilkins, all Obama appointees) issued an order which, while denying President Trump the immediate relief he sought, strongly agreed with the president’s view that the legal issues in the case should be resolved before discovery (or at least anything more than “limited discovery”) takes place. Specifically, the panel indicated that there are two open legal issues that are potentially fatal to the claims brought by the congressional plaintiffs. It states that “because either of those issues could be dispositive of this case, it appears to this court that the district court abused its discretion” by refusing to certify the case for immediate appeal.

The D.C. Circuit also indicated its concerns with “the separation of powers issues present in a lawsuit brought by members of the Legislative Branch against the President of the United States.” These concerns, it strongly suggested, counsel against moving forward with discovery if the case may be resolved on legal grounds alone. (The district judge, Judge Sullivan, took the hint and suspended discovery immediately after the D.C. Circuit issued its order.).

Although the panel remanded the case to Judge Sullivan to reconsider the certification issue, its directive seems pretty clear: certify immediately. There is one caveat, however. The panel suggested that the district court might wish to address “whether discovery is even necessary (or more limited discovery would suffice) to establish whether there is an entitlement to declaratory and injunctive relief of the type sought by plaintiffs.” This raises the possibility the plaintiffs could win a victory at the district court level (e.g., an order from Judge Sullivan declaring that President Trump is violating the Foreign Emoluments Clause), which would be politically useful even though unlikely to survive legally.

The two legal issues that will soon be before the D.C. Circuit are (1) whether there is a cause of action against the president for violations of the Foreign Emoluments Clause and (2) whether the congressional plaintiffs have standing to seek relief for violations of the clause. The latter question, as noted in my last post, has potentially broader significance for subpoena enforcement and other litigation by the House against the Trump administration. The panel made only one cryptic comment on the issue, noting the “standing question arises at the intersection of precedent” and citing Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019) and Coleman v. Miller, 307 U.S. 433 (1939).

Based on the current state of legislative standing precedent, I think the Blumenthal plaintiffs are likely to lose on standing. The question is whether or not they will lose on narrow grounds that otherwise leave untouched the ability of each house to enforce subpoenas and other information demands in court.

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