Historical Practice and the Applicability of the Foreign Emoluments Clause to the President

I want to return briefly to the question  whether the president holds an “Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (FEC). As far as I know, no judge in any of the three emoluments cases has expressed any support for the theory, pressed by Professors Tillman and Blackman in various amicus briefs, that the president does not hold such an office and therefore is not subject to the FEC. Nonetheless, the argument seems to have gained some traction in the legal academy, enough that Judge Rao, during the Mazars oral argument, referred to a dispute or debate among legal scholars on the subject. For that reason, I think it is worth calling attention to a congressional report that I recently came across which is of some relevance to this debate and which (again, as far as I know) has not been previously mentioned in that connection.

As background, you may recall that a key element of the Tillman/Blackman theory is that early presidents accepted gifts from foreign governments that allegedly would have been proscribed by the FEC if that clause applied to the president. The fact that these presidents accepted such gifts without seeking congressional consent, the argument goes, constitutes compelling evidence of the clause’s original meaning.

One might ask, though, why would this be so? Assuming that presidents accepted gifts otherwise proscribed by the FEC, this could reflect (1) lack of awareness of or attentiveness to the FEC; (2) a deliberate decision to ignore the FEC; or (3) a sincere but mistaken view the FEC did not apply to the presidency. It is not obvious why the facts as described by Tillman and Blackman should be given any particular weight in ascertaining the meaning of the FEC. Cf. Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-cv-2379, slip op. at 98 (D.D.C. Nov. 25, 2019) (“It goes without saying that longevity alone does not transform an unsupported notion into law.”). Continue reading “Historical Practice and the Applicability of the Foreign Emoluments Clause to the President”

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.

Emoluments Suits Status: Keep an Eye on Blumenthal v. Trump

The Fourth Circuit recently issued its decision in District of Columbia v. Trump (the emoluments lawsuit brought by DC and Maryland against President Trump) and, not surprisingly, the court ordered the case dismissed for lack of standing. Equally unsurprising was the court’s criticism of the district judge, who it found had committed a “clear abuse of discretion” in refusing to certify the case for appeal.

The court’s reasoning with respect to the plaintiffs’ standing theory (namely that these jurisdictions or their citizens are suffering competitive injury from the Trump Hotel in DC) largely tracks my earlier observations. This standing theory fails because (1) it is sheer speculation whether Trump’s alleged violations of the emoluments clauses inflict any injury at all, i.e., Trump’s relationship with the Trump Hotel may help its competitors as much or more than it hurts them; and (2) these competitive interests are not in any event within the zone of interests protected by the emoluments clauses.

The court gives short shrift, however, to one theory that seemed more plausible to me. The domestics emoluments clause appears designed to ensure that no state exercises undue influence over the president. To the extent Trump has accepted prohibited emoluments from certain states, it is arguable that other states (such as Maryland) have suffered an injury within the zone of interests protected by the clause. The Fourth Circuit rejected this theory as an attempt to assert a “generalized grievance,” but it did not directly confront the proposition that the clause protects the states qua states, not just the general public.

What does this mean for the prospects for the three emoluments lawsuits against Trump? Although the plaintiffs may seek further review, D.C. v. Trump is unlikely to go anywhere now. The other suit predicated on a competitive injury theory, CREW v. Trump, was dismissed by the district court and is now pending before the Second Circuit. It seems unlikely to make it to the discovery stage either, at least anytime soon.

The case to keep an eye on is Blumenthal v. Trump, which was filed by Democratic members of Congress in federal court in D.C. It presents distinct standing issues. The plaintiffs claim that they have suffered an institutional injury due to Trump’s failure to present (alleged) foreign emoluments to Congress for its consent under the Foreign Emoluments Clause. Judge Sullivan accepted this theory and refused to dismiss the case for lack of standing. This decision, however, is questionable at best under existing Supreme Court precedent, particularly in light of the Court’s most recent ruling on legislative standing.

The Justice Department has sought a writ of mandamus from the D.C. Circuit to prevent Judge Sullivan from moving forward with discovery in the Blumenthal case. It has indicated that if it does not receive a decision from the appellate court by July 22, it may seek relief from the Supreme Court, (hat tip: Seth Barrett Tillman). Should the Supreme Court agree to hear the case, it could use the opportunity to address broader questions of legislative standing that remain unresolved, which could affect the Ways and Means committee lawsuit to obtain Trump’s tax returns and other contemplated House litigation against the administration.

Emoluments Clause Litigation Status Report

When we last left the emoluments clauses, Judge Messitte, U.S. district judge for the District of Maryland, had just issued a ruling in District of Columbia v. Trump, holding that the plaintiffs (DC and Maryland) had standing to sue the president for his alleged violations of the foreign and domestic emoluments clauses. As we observed at the time, the standing theory adopted by the court, based on the premise that these violations were advantaging the Trump Hotel in DC at the expense of competitors such as the Four Seasons and Ritz Carlton, seemed strained, to put it mildly. We also noted that although the court thus far had only addressed standing, “[a]t points it appears to have already decided the merits” against President Trump.

Sure enough, in July 2018 Judge Messitte issued an opinion adopting a broad view of the term “emolument” as extending “to any profit, gain, or advantage, of more than de minimis value, received . . . directly or indirectly, from foreign, the federal, or domestic governments [including] profits from private transactions, even those involving services given at a fair market value.” Memorandum Opinion of 7-25-18 at 47. Although ostensibly Judge Messitte merely denied the president’s motion to dismiss, he effectively decided the case in favor of the plaintiffs since there is no dispute that foreign and domestic governments have patronized the Trump Hotel during the Trump administration, which is all that is required to establish an emoluments violation under the court’s theory. Not surprisingly then, the president’s lawyers sought to stay discovery and take an interlocutory appeal and, when Judge Messitte denied these motions, sought a writ of mandamus in the Fourth Circuit (about which more in a moment).

Two other emoluments suits against Trump also remain pending (hat tip: @SethBTillman). In Blumenthal v. Trump, a suit brought by members of Congress in the U.S. district court for the District of Columbia, Judge Sullivan denied the president’s motion to dismiss for lack of standing but deferred decision on other issues, including the president’s contention that the plaintiffs had failed to state a claim upon which relief may be granted. The district court as of yet has apparently not ruled on the remainder of the motion to dismiss (which was argued nearly a year ago), nor upon Trump’s motion to certify the court’s ruling on standing for interlocutory appeal. No discovery is occurring while these legal motions are pending.

The third case is CREW v. Trump, a suit filed in the U.S. district court for the Southern District of New York. The district judge in that case dismissed for lack of standing. The plaintiffs appealed to the Second Circuit, which heard argument in October 2018. No decision has yet been issued. Continue reading “Emoluments Clause Litigation Status Report”

Emoluments Trouble for Congress

As expected, Judge Messitte has issued an opinion finding that plaintiffs have standing to pursue their claims against President Trump for alleged violations of the Foreign and Domestic Emoluments Clauses in D.C. v. Trump, a case brought by the D.C. and Maryland governments in the U.S. district court in Maryland. Although I think this decision is mostly wrong, it may not matter much. The court is likely to fulfill the plaintiffs’ legal/political objectives before an appellate court has a chance to opine on the matter.

I will not bore you with the mind-numbing details of the standing analysis. The flavor of the court’s decision can be found on page 29, where it states “[i]t can hardly be gainsaid that a large number of Maryland and District of Columbia residents are being affected and will continue to be affected when foreign and state governments choose to stay, host events, or dine at the [Trump Hotel in DC] rather than at comparable Maryland or District of Columbia establishments, in whole or in substantial part simply because of the President’s association with it.”

Well, actually it can be gainsaid, and I hereby gainsay it. First, while the court cites anecdotal evidence that foreign governments (and, in one case, a state government) have frequented the Trump Hotel to curry favor with the president, this is not proof that the Trump Hotel is gaining a net advantage over its competitors because of its association with Trump. Are the Four Seasons and the Ritz Carlton (literally, the alleged “victims” being represented here) suffering an increase in room vacancies, a decline in revenue, or any other indicia of unfair competition? Undoubtedly some people are staying at the Trump because they like the president, and others are staying elsewhere because they feel differently. If the polls are to be believed, the Four Seasons should be a net winner.

Second, if the alleged injury is caused merely by the “association” between the president and the hotel, this would not be redressable by an order from the court requiring the president to divest his financial interest in the hotel. The court cursorily addresses this by saying that such an order would reduce the incentive to stay at the Trump Hotel “by some extent.” Op. at 37. This strikes me as sheer speculation (or, more accurately, speculation upon speculation).

Finally, and most importantly, I still do not see how the alleged competitive injuries are within the zone of interest protected by the emoluments clauses. The court’s conclusory assertion that competitors are within the zone of interests because the “the Emoluments Clauses clearly were and are meant to protect all Americans” is utterly unpersuasive. See op. at 41.

The opinion is closer to the mark when it discusses the Domestic Emoluments Clause. It points to the fact that Maine Governor LePage stayed at the Trump Hotel “on an official visit to Washington during the spring of 2017, met with the President, and not long after appeared with the President at a news conference” in which the latter signed an executive order that could help LePage reverse an Obama administration decision regarding a national monument in Maine. Op. at 18. Judge Messitte asserts that this “rather clearly suggests that Maryland and the District of Columbia may very well feel themselves obliged, i.e., coerced, to patronize the Hotel in order to help them obtain federal favors.” Op. at 19.

As a technical question of standing, it seems to me that if Governor LePage’s staying at the Trump Hotel constituted a violation of the Domestic Emoluments Clause (which presumably the court should assume for purposes of the analysis), there is a reasonable argument that Maryland (not DC, which is still not a state) has standing to sue as an injured party. The theory would be that the clause prohibits states from providing emoluments to the president so as to avoid any favoritism on his part with respect to one or more states. Arguably, therefore, a state should be able to sue to prevent the president from accepting a prohibited emolument from another state. See op. at 15 (plaintiffs claim standing “to protect their ‘position among . . . sister States’”) (citations omitted).

On the other hand, the court’s opinion seems to go well beyond this. It posits a causal connection between LePage’s stay at the Trump Hotel and the president’s signing of a favorable executive order. It seems rather unlikely that whatever tangential financial benefit Trump received from the governor’s stay at his hotel was actually the motivating factor for the executive order. But if this connection is part of the basis for the plaintiffs’ standing, is the court going to require them to prove it? Or is this something the court is just going to assume?

The court also cites reports that the Trump Organization has “been accorded substantial tax concessions by at least the District of Columbia and the State of Mississippi.” Op. at 17. The court goes on to say “while ordinarily there may be a presumption of regularity as far as the decisions of the tax authorities are concerned, the fact remains that Trump Organization hotels, from which the President allegedly derives substantial illegal profits, have been the beneficiaries of these actions.” Id. If I read this right, the court is holding that D.C. has standing in part based on the assumption that an agency of D.C. acted illegally.

Regardless, it is pretty clear from the court’s opinion that it has a decidedly jaundiced view of Trump’s business interests. At points it appears to have already decided the merits. See, e.g., op. at 24-25 (“Plaintiffs have alleged sufficient facts to show that the President’s ownership interest in the Hotel has had and almost certainly will continue to have an unlawful effect on competition . . .”). It cannot even resist taking an entirely inappropriate political shot at a party not even before the court, referring to “how Maine’s citizens may have felt about the propriety of their Governor living large at the Hotel while on official business in Washington . . .” Op. at 18-19. I personally think governors should stay at the Hilton Garden Inn when traveling, but this really doesn’t belong in a legal opinion. (Not to mention, “living large”?)

In short, if I were Trump’s lawyers, I would not be looking forward to the decision on the merits in this case.

None of this is to suggest that the court’s concerns are groundless from a public policy and, potentially, a constitutional perspective. The (alleged) fact that foreign governments are booking rooms at the Trump Hotel in order to win the president’s favor is unseemly at best. See op. at 4-5. While this alone would not constitute a violation of the Foreign Emoluments Clause, suppose it turned out that the Kingdom of Saudi Arabia, for example, had booked a couple floors of the hotel and had placed a standing order for the most expensive room service meals to be delivered three times a day to each room? Just a hypothetical, of course, but without any independent oversight of the president’s business arrangements, it is hardly beyond the realm of possibility.

Which brings us to Congress. It is not unreasonable to think that had Congress shown even a modicum of interest in overseeing Trump’s business dealings and the arrangements (allegedly) made to prevent conflicts of interest, this case would not be moving forward. For example, the court notes that although the president claims “he has now paid to the U.S. Treasury the profits the Hotel has received from foreign governments,” there is no detail to substantiate this claim. Op. at 4 n.5. This is the type of information that congressional oversight committees should have demanded and obtained.

Judge Messitte leaves little doubt that he intends to fill the vacuum that Congress has left. See op. at 42 (noting that under president’s standing theory “no one—except Congress which . . . may never undertake to act—would ever be able to enforce these constitutional provisions.”). In a pointed footnote, he notes that “[s]uppose” Congress is controlled by the same party as the president and it “never undertakes to approve or disapprove” the president’s receipt of emoluments; the president could receive “unlimited” emoluments “without the least oversight and with absolute impunity.” Op. at 46 n.18. It hardly needs saying that this is exactly what the judge believes has happened.

The district court’s ultimate decision will undoubtedly render a harsh verdict on Trump’s conduct and probably entail serious (though perhaps temporary) legal consequences for the president. But the real institutional loser will be Congress, which once again will see its constitutional functions usurped by another branch.

In this case, at least, it has no one to blame but itself.



Standing Silliness in DC v. Trump

Last week I attended a part of the argument in DC v. Trump, one of three Emoluments Clause cases pending against President Trump. This case was brought by the governments of Maryland and the District of Columbia. It is being heard by Judge Messitte of the United States District Court for the District of Maryland, who sits in Greenbelt, Maryland. The argument, which began around 10 am and was wrapping up when I left at 3pm, was focused solely on whether the plaintiffs had standing to bring the case. This is a lot of time to spend on standing, and a good deal of the argument got down into the weeds of the various components of standing (injury in fact, traceability, redressability, etc.).

The most important takeaway is that Judge Messitte is clearly not inclined to follow the lead of Judge Daniels in CREW v. Trump and dismiss the case for lack of standing, at least not at this stage. The judge at one point became so impatient with hearing about the CREW v. Trump opinion that he told defendant’s counsel “don’t cite Judge Daniels to me.”

Judge Messitte seemed to be starting from the presumption that if the Foreign and/or Domestic Emoluments Clauses were being violated (a question on which he did not, from what I heard, express an opinion), somebody ought to be able to go to court to complain about it. Since no one else had any better standing to sue than these plaintiffs, he might as well let them go forward. The court evidently viewed the question of standing to be a legal technicality or fiction, one that he was happy to help the plaintiffs figure a way around.

Certainly anyone listening to the argument would come away with the impression that standing doctrine is rather ridiculous. A good deal of the discussion focused on the claims of Maryland and DC that the Trump Hotel in DC had caused economic injury to various competitor hotels and restaurants in the surrounding area due to the Trump Hotel’s alleged advantages in securing business from state and foreign governments. This led to Judge Messitte asking whether the MGM Hotel in National Harbor (one of the properties where Maryland claimed to have an economic interest) would actually lose gambling revenue from the Trump Hotel given that the latter has no casino. And defendant’s counsel kept harping on the fact that the plaintiffs had provided anecdotal evidence of competitive injury only to the Ritz and the Four Seasons, which were not (at least according to him) among the competitors for which the plaintiffs could assert a derivative economic interest.

While I admit to not being an expert on standing or having read all of the cases discussed in the argument, this whole line of inquiry strikes me as rather silly. I assume that if one looked hard enough one could find some people who stayed or ate at the Trump Hotel, rather than a competitor, for reasons having to do with the fact that the former is associated with the president. It seems rather unlikely, however, that one could show that any competitor suffered a net economic injury in light of the fact that some people also undoubtedly chose not to frequent Trump’s hotel (or restaurants) for precisely the same reason. And even if an injury could be shown, it is hard to see it results from the fact that Trump has an ownership interest in the hotel, as opposed to the fact that his name is on it.

Far more importantly, any competitive injury suffered by other hotels and restaurants has nothing to do with the purposes of the Emoluments Clauses and is therefore not within the zone of interests protected by these provisions. To give an analogy, my wife loves the original BLT restaurant and would undoubtedly be interested in dining at the new BLT Prime in the Trump Hotel. By the logic of plaintiffs’ theory, I should be able to sue President Trump on the grounds that if his establishment were not as busy with foreign and state government visitors trying to curry his favor, it would be easier for me to get a dinner reservation. I assume that this argument would be laughed out of court, but I fail to see how it is any different than plaintiffs’ “competitive injury” theory.

Of the standing cases I heard discussed, the most relevant seems to me to be Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974), a case in which the plaintiffs alleged that the Incompatibility Clause was violated by the fact that more than 100 members of Congress were in the reserves during the Vietnam War. Their alleged injury stemmed from the fact that this violation made Congress less independent of the executive branch and therefore more likely to support the war, thereby injuring plaintiffs as citizens and taxpayers opposed to the war. The district court accepted this theory of standing, finding the Incompatibility Clause to be a “precise and self-operative” provision designed to prevent the very type of harm asserted.

The Supreme Court, however, rejected the district court’s view of standing:

Furthermore, to have reached the conclusion that respondents’ interests as citizens were meant to be protected by the Incompatibility Clause because the primary purpose of the Clause was to insure independence of each of the branches of the Federal Government, similarly involved an appraisal of the merits before the issue of standing was resolved. All citizens, of course, share equally an interest in the independence of each branch of Government. In some fashion, every provision of the Constitution was meant to serve the interests of all. Such a generalized interest, however, is too abstract to constitute a “case or controversy” appropriate for judicial resolution. The proposition that all constitutional provisions are enforceable by any citizen simply because citizens are the ultimate beneficiaries of those provisions has no boundaries.

Closely linked to the idea that generalized citizen interest is a sufficient basis for standing was the District Court’s observation that it was not irrelevant that if respondents could not obtain judicial review of petitioners’ action, “then as a practical matter no one can.” Our system of government leaves many crucial decisions to the political processes. The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.

Id. at 227-28.

The Emoluments Clauses, like the Incompatibility Clause, are “precise and self-operative” structural provisions designed to protect the independence of one branch of the federal government. This is an interest in which all citizens share equally, and therefore is too generalized a grievance to support standing. If this means that no one would have standing to sue (which, as I will discuss in a moment, it may not), that is not sufficient reason to find standing.

Of course, Schlesinger is not on all fours with DC v. Trump because the plaintiffs in Schlesinger asserted their actual grievance, rather than an interest trumped up (sorry) solely for purposes of the litigation. It is obvious that neither Maryland or DC has any actual interest in the “competitive injury” that the Trump Hotel allegedly inflicts. It is as if the Schlesinger plaintiffs, instead of asserting their actual grievance, had claimed injury by virtue of the fact they might lose out to a member of Congress for a coveted slot or promotion in the reserves. Such a move would not have worked, and should not work now, because the alleged grievance is not anywhere in the vicinity of the zone of interests protected by the constitutional provisions at issue.

I will say, however, that there was a part of the plaintiffs’ standing in DC v. Trump position that was at least somewhat persuasive. They made a strong argument, based on in large measure on Federalist No. 73, that the Domestic Emoluments Clause (which prohibits the president from receiving additional emoluments from the United States or any individual state) is designed in part to ensure that all states are treated equally. Thus, if one or more states were providing emoluments to the president, there is an argument that the other states suffer a cognizable injury distinct from the injury suffered by the public at large. Accordingly, there is a plausible basis for Maryland (not DC, which seems to keep forgetting that it is not a state) to assert standing with respect to the Domestic Emoluments Clause only.

Unfortunately, it seems likely that Judge Messitte will allow Maryland and DC to proceed on both the Foreign and Domestic Emoluments Clause claims. As there is no plausible standing theory on the former claim, and because Congress at any rate should be the arbiter of Foreign Emoluments Clause violations, it remains essential that Congress bestir itself to take action on this front.

Don’t be a Potted Plant and Other Takeaways from CREW v. Trump

Judge Daniels of the U.S. District Court for the Southern District of New York has issued this opinion (hat tip: Eric Columbus) dismissing the Emoluments Clause lawsuit spearheaded by Citizens for Ethics and Responsibility in Washington (CREW). The court found that neither CREW nor its co-plaintiffs (individuals and businesses in competition with hotels and restaurants owned by the Trump Organization) had standing to sue President Trump for allegedly violating the Foreign and Domestic Emoluments Clauses.

Much of the court’s analysis is focused on explaining why the plaintiffs have not suffered legally redressable injuries from the alleged constitutional violations. Professor Jonathan Adler has a good summary of the court’s reasoning here, and I have nothing in particular to add with respect to that aspect of the opinion. I do, however, have a few additional observations.

First, while the court makes clear (see op. at 2, n.1) it is not addressing the merits of the case, I think one can sense some skepticism from the court about the plaintiffs’ theory of liability. The gravamen of their claims is that Trump’s “’vast, complicated and secret’ business interests are creating conflicts of interest and have resulted in unprecedented government influence in violation of the Domestic and Foreign Emoluments Clauses of the United States Constitution.” Op. at 1.

As the court notes, however, nothing in the Constitution prevents Trump from operating an extensive business empire that competes with CREW’s co-plaintiffs as to non-government business. Op. at 17. To the extent the Constitution might be construed to apply to business transactions with governmental entities, the effect on the Trump Organization would be largely incidental. As the court points out, even in that circumstance the Constitution would not prohibit the Trump Organization from doing business with foreign (or state) governments; it would simply prevent Trump from personally accepting income or profits from these transactions. Op. at 14 & n.3. Trump thus can fix any constitutional problem if he has not already, and Congress can waive any constitutional problem under the Foreign Emoluments Clause (FEC) anyway. Op. at 15. In short, Judge Daniels effectively rejects the notions that the Constitution prohibits the Trump Organization from operating during the Trump presidency or that Trump needs to divest himself of all interest in his businesses.

A second and more important takeaway from the opinion relates specifically to the FEC. Judge Daniels did not merely hold that these particular plaintiffs lack standing to sue. Instead, he found that any claim under the FEC would be non-justiciable. Op. at 25-26. As the court explains:

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 [FEC] makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the [FEC], 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.

Op. at 26 (emphasis added).

In addition, the court found that plaintiffs’ claims were premature because Congress itself had taken no action with regard to Trump’s alleged violations of the FEC. (One might add that Congress had little opportunity to do so, given that CREW filed its lawsuit on the first day of the administration.) The result might be different, the court implied, if in the future Congress were to find Trump’s activities required congressional consent. Op. at 27-28. But it is not the court’s role to tell Congress what to do or “how it should or should not assert its power in responding to Defendant’s alleged violations of the Foreign Emoluments Clause.” Id.

In a footnote, Judge Daniels underscored this point: “Congress is not a potted plant. It is a co-equal branch of the federal government with the power to act as a body in response to Defendant’s alleged Foreign Emoluments Clause violations, if it chooses to do so.” Op. at 28 n.8.

Needless to say (or, rather, as I have already said here and here), I am in strong agreement with the court’s approach to justiciability of the FEC claim. The House and/or Senate should give serious consideration to filing an amicus brief defending the court’s decision if and when CREW appeals to the Second Circuit.

Congress can also justify Judge Daniels’ confidence by demonstrating that it is not in fact a potted plant. It should initiate a review of Trump’s business interests to ensure there are adequate safeguards to prevent violations of the FEC or any other unacceptable conflicts of interest. Upon reflection, I think the best way to conduct a serious, nonpublic and nonpartisan review of this matter would be to entrust it to the GAO, possibly under the auspices of the Joint Committee on Taxation.

Finally, I must note that Judge Daniels makes no mention of the theory, advanced by Professor Tillman as amicus curiae, that the FEC is inapplicable to the president, other than to note that “[f]or purposes of this motion, Defendant has conceded that he is subject to the Foreign Emoluments Clause.” Op. at 6 n.2. Make of this what you will, but perhaps it suggests the court was not bowled over by Tillman’s theory? As an exercise in reading tea leaves this seems as least as plausible as Tillman’s apparently inferring from these orders in District of Columbia v. Trump (another emoluments case) that Judge Messitte is interested in hearing more about his theory. But we will see.

Why I Snipe

In my last post, I (briefly) laid out reasons why Congress should intervene in the ongoing litigation regarding the Foreign Emoluments Clause. Professor Tillman has offered a comment to that post, which he has shared by email and on the blog. His comment is set forth in full below, along with my response.

Before getting to that, though, there was one other point which I should have mentioned. As we have discussed, pending before the House Ethics Committee is a case which presents two of the major issues that could be decided by the courts if they reach the merits in the FEC litigation: (1) who is covered by the Clause; and (2) do fair market value transactions with foreign governments constitute “emoluments” within the meaning of the Clause. This provides an additional reason why Congress should insist on its own primacy in deciding questions related to the FEC. Not only would judicial pronouncements on the merits of these questions interfere with Congress’s authority vis a vis the other branches, but also with the authority of the House and Senate to discipline their own members.

Now to Tillman’s comment:

Litigation in general has rules. And the three Foreign Emoluments Clause cases have scheduling orders imposed by the court (in the SDNY, District of DC, and District of Maryland), and/or by the Federal Rules of Civil Procedure. Any amicus brief along the lines you suggest would, in effect, support the President. But the time for filing ab amicus brief in support of the President — in all 3 actions — elapsed some time before your post went live (on October 26, 2017).

It is too late for the House and Senate (or Congress as a whole) to follow your advice. Yes, they could file late, but such a late filing would require justification. What is that justification? Why did you not present your advice in a more timely fashion?

In lieu of a brief, you could take the time to write a full-length paper and post it on SSRN as a prelude to publication in a journal. Or you could snipe from the wings against those who actually attempt to do something consistent with the practical requirements of actual litigation.

It is up to you.

Here is my response.

Why do I snipe (or why didn’t I snipe earlier)? Tillman asks why I “snipe from the wings” rather than writing a full-length article or brief detailing my own views on the pertinent legal issues. But this misapprehends the nature of my concern. I am not urging Congress to act to ensure that the courts have the benefit of my brilliant legal scholarship. I want Congress to recognize that its own institutional interests are at stake and to take action to protect those interests. Sure, I have suggested some legal arguments that Congress may wish to make, but Congress has its own counsel that are more than capable of deciding on and developing those arguments.

To the extent that I have contributed any original thinking on the FEC, it relates solely to the question of whether the president is covered by the Clause. But this is distinct from the question of who should decide whether the president is covered. To be sure, I think it is important that Congress understand not only the (overwhelming, IMHO) legal arguments in favor of the president being covered, but also the radical implications of a contrary decision. For example, it would mean that the president and vice-president could hold seats in Congress, and that an impeached and convicted president (or vice-president) could not be disqualified from holding that office again. But while the substantive outcome of this issue is very important, it is equally if not more important that Congress, not the courts, should be making it.

As for why I did not post my thoughts on this earlier, I am sure the readers are not interested in my personal time management. As it happens, I don’t think it would have made any difference if I had posted earlier (granting, purely for the sake of discussion, that Congress is eagerly awaiting my advice on these things), for reasons I discuss below. But I will certainly endeavor to be quicker on the trigger in the future. Nobody likes a slow sniper.

What is the point of my giving this advice to Congress? This is a question that Tillman did not ask (at least explicitly), but should have. What makes me think that Congress has the slightest interest in what I have to say or would even be aware that I said it? And, as several people have commented to me, what makes me think that Congress even has any interest in vindicating its own institutional interests?

I am under no illusion that “Congress” as a whole reads my blog or that the House and Senate chambers are echoing with the sounds of members excitedly discussing my proposal. I do know that my blog is read by some of the relatively small cadre of folks on the Hill who care about institutional prerogatives and have the capacity and band-width to consider these types of “over the horizon” issues. The most that can be realistically hoped is that my post will trigger some thinking and discussion about this matter.

As a general matter, there reasons to question Congress’s commitment to protecting its own institutional interests. Individual members may care (or at least say they care) about vindicating those interests, but Congress as a whole is certainly far less consistent in protecting its institutional prerogatives than is the executive. These is partly a result of structural incentives inherent in a multi-member, bi-cameral body, but is also partly historically contingent. In my (tentative) opinion, the prediction that Congress would become more assertive in its dealings with the other branches (particularly the executive) in the unique circumstances of the current administration is in fact being borne out, but it is very much a work in progress. So my post may represent a triumph of hope over experience, but I don’t think it is entirely futile.

Is it too late for Congress to act on my advice? So I am generally familiar with the fact that litigation has rules and, while I did not look at the scheduling orders in the three district court cases, I recognized when I wrote my post that it was likely that the deadlines for filing amicus briefs in those cases had well passed. As a purely theoretical matter, Congress might still be able to file amicus briefs in those cases if it wished to do so. There is a statute, for example, giving Senate Legal Counsel greater leniency in filing amicus briefs than the ordinary litigant. See 2 U.S.C. § 288l(a). (I understand there is currently a legislative effort to give the House Counsel some of the same authorities, although I do not know whether this specific provision is one of those being considered).

As a practical matter, however, there was never any realistic chance that Congress was going to file an amicus brief at the district court level. There is simply too much that would need to happen before either house is going to authorize the filing of an amicus brief in these cases (particularly given their politically fraught nature). My hope (and it is no more than that) is that Congress starts the process of developing a legal position so that the House and/or the Senate could appear as amicus before the courts of appeals or the Supreme Court.

Finally, I would note that my proposal was not limited to formal appearance in court. There are a number of things that Congress could do (such as holding hearings) that would advance its institutional interests and make it less likely that the courts will think that Congress has simply abandoned its constitutional responsibilities for implementing the FEC.

So it is definitely not too late for Congress to act. The clock, however, is ticking.



Why Congress Must Intervene in the Foreign Emoluments Litigation

Professor Josh Blackman has a very informative summary of the oral argument before U.S. District Judge George Daniels in CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), one of the three federal cases in which President Trump is being sued for (allegedly) violating the Foreign Emoluments Clause. If you are following these cases, you should read the whole thing.

Of particular interest is the government’s “evolving” position on whether the FEC applies to the president at all. The executive branch has repeatedly affirmed that the clause applies to the president. See, e.g., Off. of Legal Counsel, Applicability of the Emoluments and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize (Dec. 7, 2009). Moreover, prior to the beginning of the Trump administration, the president-elect’s personal lawyers released a white paper in which they expressly acknowledged: “On assuming office, the President-Elect will be bound by—and will scrupulously abide by—his obligations under the Constitution. That includes the obligations created by the constitutional provision that these commentators highlight, the Foreign Emoluments Clause.”

My understanding had been that the Department of Justice, representing Trump as a defendant in his official capacity in the three federal lawsuits, had likewise acknowledged that the FEC applied to the president. However, at the oral argument, DOJ attorney Brett Shumate asserted that the government was only “assuming” that the FEC applied. Subsequently, Shumate wrote to the judge, confirming that “the government has not conceded that the President is subject to the Foreign Emoluments Clause.”

To paraphrase former VP Biden, this is a BFD. I don’t know whether the government will actually argue in court that the FEC is inapplicable to the president. Presumably it hopes not to have to address the issue because the cases will be dismissed as non-justiciable (as they should be). But even if the government never makes the argument, it has now reserved the right to assert that the FEC does not apply to the president or vice president. This seems a little inconsistent with the promise previously made by Trump’s personal counsel, but Congress has now been given fair warning. The president (or his successors) may take the position in the future that the FEC is inapplicable. That means that the president could accept a present, emolument, office or title from a foreign government without seeking congressional consent or even notifying Congress of this acceptance.

This illustrates the danger that these cases pose to Congress’s institutional interests. Both history and text strongly suggest that the FEC is designed to be enforced by Congress, not by the judiciary. Judge Daniels indicated as much during the oral argument, stating: “Clearly the Constitution was written so that Congress would make the determination. . . . They don’t have to sit on their hands if they think there’s a problem. They can do something about it.”

The court is clearly right about this. But there is no one before the court representing Congress’s interests in this matter. Trump’s personal and political interests, the executive branch’s institutional interests, the views and interests of Trump’s political opponents and even the thoughts of officious intermeddlers like Professor Tillman are represented, but not Congress.

It is time for Congress to stop sitting on its hands. It should authorize House and/or Senate legal counsel to file briefs in the three FEC cases, politely explaining to the courts that this is none of their business. It should demand through its committees that the Department of Justice provide a straight answer as to whether the FEC applies to the president. And, while they are at it, the committees should take a hard look at Trump’s business interests and the arrangements that he has made to “scrupulously abide” by the Foreign Emoluments Clause.

You know, the constitutional provision that may or may not apply to him.



Why Tillman’s Experts Show He is Wrong

Alternate title: “Everything You Ever Wanted to Know about the Hamilton Report (and Much, Much More).”

Readers of this blog are aware that Professor Seth Barrett Tillman has long maintained that the presidency and vice presidency are not “offices under the United States” within the meaning of various clauses of the Constitution which use that expression or a variant thereof. Tillman’s theory has a number of implications. We first discussed the theory in a December 20, 2008 post entitled “Can Joe Biden Be Vice President and Senator at the Same Time?,” in which it was noted that one implication is that the Incompatible Offices Clause (U.S. const., art. I, §7, cl. 2) would not prohibit someone from serving as president or vice president and at the same time as a member of the House or Senate.

More recently, Tillman’s theory has received a good deal of attention for its application to the Foreign Emoluments Clause (U.S. const., art. I, § 9, cl. 8). If, as Tillman maintains, the president does not hold an “Office of Profit or Trust under [the United States]” within the meaning of the FEC, then President Trump is not subject to the prohibitions of that clause, much to the dismay of many, including the plaintiffs in three separate lawsuits who have sued Trump for violating it.

Tillman has not (at least yet) convinced many people that his theory is correct. Among the unconvinced are President Trump’s personal lawyers and the Department of Justice, which represents the president in his official capacity in the aforementioned lawsuits. Because no party to these suits disputes the FEC’s applicability to the president, Tillman filed this amicus brief in one of the cases, CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), to ensure that the court has the benefit of his point of view.

(One prominent legal scholar who has been convinced is Professor Josh Blackman, who is representing Tillman in the CREW case. For brevity’s sake, this post refers only to Tillman, but it should be noted that Blackman also believes that the FEC does not apply to the president.)

Tillman’s argument relies in significant part on a 1793 document prepared by the Treasury Department that suggested, by omission, the president and vice president were not among those who held any “civil office or employment under the United States.” See Amicus Br. at 18-21. This document, which was submitted to the Senate under the signature of Secretary of the Treasury Alexander Hamilton, will be referred to herein as the “Hamilton Report.”

Before getting into the nuts and bolts of the Hamilton Report, I want to stress that Tillman’s reliance on the report depends on four assumptions about or inferences from the report: (1) the omission of the president and vice president from the report was a deliberate decision, rather than an oversight or error; (2) this decision was made or approved by Hamilton personally; (3) the decision was made for one specific reason, namely that the phrase “office or employment under the United States” excluded the president and vice president; and (4) the interpretation of this phrase was based on the unambiguous meaning of the words, rather than the context of their use or an extra-textual source of information. None of these can be definitively proved (or disproved), but Tillman evidently believes they can be adequately established for his purposes.

A foundational element of Tillman’s argument, though, came under attack in the CREW litigation when various experts and others aligned with the plaintiffs questioned whether the presidency and vice presidency had actually been omitted from the Treasury Department’s 1793 list. They contended (see here, here and here) that a subsequently published version of the Hamilton Report did include the president and vice president and therefore it was “grossly misleading” to suggest that Hamilton had omitted these offices at all. Moreover, in an amicus brief filed with the court, a group of legal historians contended that Hamilton had in fact signed the second version of this report, contrary to Tillman’s position.

Tillman responded to these charges by filing a proposed amicus response brief with a number of supporting exhibits, including declarations from five expert witnesses, two with expertise on authenticating founding-era documents and three with expertise on Alexander Hamilton. The evidence from these witnesses showed, to the satisfaction even of Tillman’s critics, that Hamilton signed only the Hamilton Report and not the version which listed the president and vice president. (That second version, which we will discuss later, was likely created in the 1830s, well after Hamilton’s death). In fact, the legal historians who had filed the brief criticizing Tillman issued a formal apology to him as well as a letter to the court withdrawing the footnote in which the criticism was made.

At this point you may be thinking this is all very interesting (if you’ve read this far I will assume you are the sort of person who would find this interesting), but is this really the way we go about determining the meaning of a constitutional provision? An inference from omission that is said to cast light on the view of a single framer about the meaning of a phrase that is used in an entirely different context but is similar (though not identical) to a phrase used in the Constitution? And which then leads to a battle of forensic experts about whether the omission happened in the first place? Is this original public meaning originalism or National Treasure originalism?

Well, these are good questions you ask, and I must admit I find the whole thing a little odd myself. Perhaps the judge did too, as he declined to accept Tillman’s proposed amicus response brief. But here at Point of Order, we never hesitate to waste large amounts of time on arcane matters that will never affect anyone in the real world. (Ask Vicki Divoll if you don’t believe me.) So here goes.  Continue reading “Why Tillman’s Experts Show He is Wrong”