Patterico's Pontifications

7/10/2019

4th Circuit Dismisses Emoluments Lawsuit against Trump

Filed under: Law — DRJ @ 8:02 am



[Headlines from DRJ]

The HillAppeals court dismisses Emoluments Clause lawsuit in win for Trump:

The Fourth Circuit Court of Appeals on Wednesday dismissed a lawsuit filed by Maryland and D.C. alleging that President Trump is violating the Emoluments Clause of the Constitution, finding that they did not have the standing to sue the president.

A report on oral argument in the case last March indicated a win for Trump:

A federal appeals court panel was indisputably hostile Tuesday to a lawsuit accusing President Donald Trump of violating the Constitution by profiting from his business dealings with foreign countries seeking to curry favor with his administration.

The uphill battle the suit faces was evident before the arguments even began Tuesday morning when it was revealed that all three 4th Circuit Court of Appeals judges assigned to the case are GOP appointees, including two of the court’s most conservative jurists.

One of those judges suggested that the suit could be a precursor to attempting to drive the president from office through impeachment. And two of the judges came close to accusing the Maryland-based district court judge handling the suit, Clinton-appointee Peter Messitte, of impropriety for trying to engineer the challenge rather than responding to legal issues presented to him by the officials who brought the suit: the attorneys general of Maryland and Washington, D.C.

A NY federal court dismissed another emoluments lawsuit (there are 3 cases), also based on standing. That case is on appeal in the 2nd Circuit. It is curious the courts are using standing but the Emoluments Clause is rarely tested, so it may be difficult to apply.

— DRJ

19 Responses to “4th Circuit Dismisses Emoluments Lawsuit against Trump”

  1. I was expecting this would get tossed, but for the substance of the case, not lack of standing. Constitutionally, it should be up to Congress to put guardrails around Trump’s private business dealings while president, not a federal court. So far, Congress has done basically nothing.

    Paul Montagu (fc91e5)

  2. Trump’s lawyers finally won something against competent counsel? I’m gonna go check the Cubs’ standing.

    nk (dbc370)

  3. Leading NL Central. Thanks, DRJ!

    nk (dbc370)

  4. So… I have a vague sense what “standing” means in lawsuit.

    So, why couldn’t anyone have standing in accusing the POTUS of violating something explicitly stated in the US Constitution?

    How else would this clause be enforced?

    whembly (fd57f6)

  5. Congratulations to His Most Serene Highness, King Donald of Covfefe, First of His Name!

    Dave (1bb933)

  6. All in all it’s just another spitball on the Wall…

    Colonel Haiku (2601c0)

  7. ah damon, you’re a riot, well another black mark against david brock’s puppets,

    narciso (d1f714)

  8. So, why couldn’t anyone have standing in accusing the POTUS of violating something explicitly stated in the US Constitution?

    From my non-lawyerly understanding, the plaintiff would have to show they have suffered some specific actual harm.

    Dave (1bb933)

  9. The case is here:

    http://www.ca4.uscourts.gov/opinions/182486.P.pdf

    In answer to the question in #4 about standing, the 4th circuit explains:

    [T]he Supreme Court has “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 state an Article III case or controversy.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 573–74 (1992). Rather, to seek injunctive and declaratory relief, “a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized” and that “the threat [is] actual and imminent, not conjectural or hypothetical.”

    Usually, when the state AG is suing, he finds some concrete harm hapening to his state as a result of Federal action or non-action. That’s harder to do in a case involving emoluments than it is in a case about EPA or FTC inaction.

    Appalled (d07ae6)

  10. Standing means the “legally protectible stake or interest that an individual has in a dispute that entitles him to bring the controversy before the court to obtain judicial relief.”

    Most standing issues arise over the enforcement of an allegedly unconstitutional statute, ordinance, or policy. One may challenge a law or policy on constitutional grounds if he can show that enforcement of the law or implementation of the policy infringes on an individual constitutional right, such as Freedom of Speech. For example, in tinker v. des moines independent community school district, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), high school officials in Des Moines, Iowa, had suspended students for wearing black armbands to school to protest U.S. involvement in the Vietnam War. There was no question that the parents of the students had standing to challenge the restrictions on the wearing of armbands. Mere ideological opposition to a particular government policy, such as the Vietnam War, however, is not sufficient grounds to challenge that policy in court.

    A significant economic injury or burden is sufficient to provide standing to sue, but in most situations a taxpayer does not have standing to challenge policies or programs that she is forced to support. In Frothingham v. Mellon, 288 F. 252 (C.A.D.C. 1923), the Supreme Court denied a federal taxpayer the right to challenge a federal program that she claimed violated the Tenth Amendment, which reserves certain powers to the states. The Court said that a party must show some “direct injury as the result of the statute’s enforcement, and not merely that he suffers in some indefinite way common with people generally.”

    Although the Supreme Court made a narrow exception to this prohibition on taxpayer suits in Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968), granting standing to a taxpayer to challenge federal spending that would benefit parochial schools, the Court has never gone beyond that. In fact, there is some doubt as to the vitality of the Flast decision. In 1974 the Court denied standing to a taxpayer who sought to challenge Congress’s exempting the Central Intelligence Agency from the constitutional requirement under Article I, Section 9, Clause 7, that government expenditures be publicly reported (United States v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678). Since Richardson the Court has continued to maintain the traditional barrier against taxpayer lawsuits.

    The issue of standing has played a crucial role in Class Action lawsuits, especially those filed by environmental groups. In Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972), the Court denied standing to an environmental group that was challenging a decision by the secretary of the interior. The Court ruled that the Sierra Club had not demonstrated that its members would be substantially adversely affected by the secretary’s decision. Later environmental class actions have overcome the standing hurdle by including specific harms that group members would suffer, thus avoiding the Court’s rule against generalized concerns.

    The various emoluments cases involve different kinds of plaintiffs, perhaps designed to deal with the way courts might handle standing. But it is hard to find a plaintiff with an emoluments claim that is different/worse than a typical citizen or taxpayer might assert.

    Some would say that is why this should be a matter for impeachment, not the courts. If so, the court decisions are leaving the door open for that result by deciding these cases based on standing and not on the merits. It seems there will not be a court decision equivalent to the Mueller Report that reviews the facts and law on Trump and emoluments. Decisions based on standing don’t get to the issues of law and fact on the substance.

    DRJ (15874d)

  11. Ah… makes much more sense.

    I guess this goes in “that bucket” that not everything justiciable.

    So, it’s up to Congress to pass laws addressing these concerns.

    whembly (fd57f6)

  12. *is justiciable.

    whembly (fd57f6)

  13. All in all it’s just another spitball on the Wall…

    Colonel Haiku (2601c0) — 7/10/2019 @ 9:02 am

    If you mean it didn’t stick I think you are correct.
    if you mean that he’s not violating the emolument clause I think the answer isn’t known at this time.

    But I wish it were. Even if trump is 100% unaffected by income from foreign governments I would like a system robust to that.

    Having your children run a business that takes unknown amounts of money from foreign government and domestic interests seems like a pretty easy way to get around anti-corruption laws. It would be nice to drain the swamp of this type of opportunity. I find it every bit as unethical as the way the Clinton foundation was run.

    Time123 (69b2fc)

  14. I find it every bit as unethical as the way the Clinton foundation was run.

    It’s far worse. The Clinton Foundation is a non-profit charitable organization subject to mandatory financial transparency. The Clintons have never been paid salaries by the Foundation. Although they certainly do have an interest in its success, and there’s no doubt that donations may be made, in many cases, in an attempt to gain favor or access, money donated to the Clinton foundation does not go into their own pockets.

    The Trump Organization, on the other hand, is the personal piggy bank of Trump and his spawn, and let’s just say transparency and scrupulous accounting aren’t among the things its known for.

    Dave (1bb933)

  15. The Clinton Foundation may have been a continuing criminal enterprise, e.g., Haiti relief.

    OT, but Acosta appears to be very forthright in discussing his role in the 2007-2008 Epstein agreement in this “press conference”.

    Colonel Haiku (2601c0)

  16. Off-topic but law-related: Another federal judge tells the Justice Dept “ix-nay” on changing its census legal team.

    Dave (1bb933)

  17. If a federal officer was taking foreign money under the table, it certainly would be grounds for impeachment. I *think* the federal government might also have a civil case, based on the emoluments clause, to recover the money, but I can’t see others having standing. Maybe someone who was directly harmed by the action(s) that garnered the emolument (in this sense, a bribe or perhaps a tip).

    Kevin M (21ca15)

  18. So, Dave, if Hillary travels to Japan to give a speech, and the honorarium goes to the Clinton Foundation, does the Foundation not cover her expenses?

    Kevin M (21ca15)

  19. But it is hard to find a plaintiff with an emoluments claim that is different/worse than a typical citizen or taxpayer might assert.

    Let’s say you had a company that mined uranium and sold it to the US government, and the Secretary of State negotiated an agreement to allow uranium mined by slave child labor in the Congo to also be sold to the US government, undercutting your price. Then the government of the Congo gave the SecState’s charitable foundation a $20 million contribution.

    Would your company have standing to sue under the emoluments clause?

    Kevin M (21ca15)


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