//  12/27/17  //  Commentary

Cross-posted from Dorf on Law

Last week Federal District Judge George B. Daniels of the SDNY dismissed the lawsuit pending in his court against President Trump alleging violations of the (foreign and domestic) Emoluments Clauses on multiple procedural grounds. In under 30 double-spaced pages, Judge Daniels concluded that: the private plaintiffs who run businesses that compete with Trump's businesses lack Article III standing because their injuries are too speculative; they also lack Article III standing because their claims are not redressable; they lack prudential standing because their injuries do not fall within the zone of interest protected by the Emoluments Clauses; the institutional plaintiff CREW (Citizens for Responsibility and Ethics in Washington) lacks Article III standing; the case presents a non-justiciable political question; and the lawsuit is not ripe.

Wow! That's a lot of flaws. How could the plaintiffs' cast of all-star lawyers have filed such a weak case?

The short answer is they didn't. I argued back in January that the case for Article III standing by CREW under existing Supreme Court and especially Second Circuit precedent is pretty strong. I argued in April that the addition of the competitor plaintiffs should have made the argument for standing "bulletproof." Was I wrong?

So thought some skeptics, who took to Twitter last week and retweeted the tweet by Take Care promoting my April essay, thereby implicitly criticizing the "bulletproof" characterization. Fair enough, I suppose, but I wrote in both my January blog post and the April Take Care essay that I thought it quite possible that the Supreme Court would overrule or narrow out of existence the key decision upon which CREW relied for standing. After all, the majority opinion in that case was authored by Justice Brennan, and given the ideologically rightward drift of the SCOTUS over the last 35 years, there was and remains a worrying possibility of a de facto or de jure overruling should the case end up before the justices.

What I did not expect was that a federal district judge would simply fail to apply the law that currently binds him. Yet that's more or less what Judge Daniels did. His opinion rejecting jurisdiction may ultimately be upheld by higher courts that either fail to follow or expressly overrule existing precedent.

So in a sense the skeptics are right, but only because a bulletproof vest provides no protection against a dirty bomb.

An excellent essay on TakeCare by Leah Litman and Daniel Hemel catalogues the most egregious errors that Judge Daniels managed to pack into his terse opinion. My two favorites are what Litman and Hemel label "(1) The Mysterious Disappearance of Competitor Standing Precedents," and "(4) Congress Is Not a Potted Plant—Even When It Acts Like One." In point (1), they note how Judge Daniels rejects the competitor standing claim by ignoring the Supreme Court's competitor standing opinions. By "ignoring," I don't mean that he mischaracterizes those cases; I mean he doesn't discuss them, relying instead on other, less relevant cases.

In point (4), Litman and Hemel point to a glaring stare-you-in-the-face, didn't-his-law-clerks-look-this-over-before-sending-it-out-the-door? error. Judge Daniels says that the Emoluments lawsuit presents a non-justiciable political question, because the Constitution commits to Congress the determination whether to approve of an otherwise-forbidden Emolument. That conclusion is wrong on its own terms for a reason I'll address momentarily, but even if it were true, it would not do the work it needs to do. As Litman and Hemel note, the Constitution forbids the receipt of foreign and domestic Emoluments. Congress may authorize the receipt of otherwise-forbidden foreign Emoluments but not domestic ones. So even if Judge Daniels were exactly right about the commitment of the issue to Congress, that would only dispose of half the case.

Meanwhile, however, the political question analysis is just plain illogical on its own terms, which probably explains why even the none-too-bashful President Trump's lawyers did not directly argue that the case presents a non-justiciable political question based on a commitment to Congress. Illogical why? Because the text of the Constitution does not commit to Congress the power to decide whether to ban foreign Emoluments. The Constitution clearly bans them, committing to Congress the power to lift that ban.

Saying that the courts have no power to adjudicate foreign Emoluments Clause violations because Congress could authorize otherwise forbidden Emoluments is like saying courts have no power to adjudicate copyright claims because Congress could repeal the copyright law (and thus authorize otherwise forbidden copying).

The district court opinion in CREW contains so many errors of law and basic logic that one suspects that something other than ordinary adjudication must be going on. As I read the opinion, Judge Daniels is more or less screaming at the top of his lungs I DON'T WANT TO TOUCH THIS SCORCHINGLY HOT POTATO, AND I'M GOING TO GIVE YOU SO MANY REASONS WHY I CAN'T TOUCH THE POTATO THAT YOU'LL GO AWAY--REGARDLESS OF WHETHER ANY OF THE REASONS I PROVIDE IS REALLY ANY GOOD.

I can understand that sentiment.  A lawsuit against even a normal president would lead a federal district judge to want to proceed cautiously and, if possible, to exercise what Alexander Bickel famously called the "passive virtues" epitomized by various doctrines that allow courts to avoid the merits of contentious questions.

And there are special reasons why a judge would want to be even more cautious with a lawsuit against this president. Nobody wants to be called a "so-called judge" or have his impartiality questioned based on his ancestry, or be dismissed as a "judge sitting on an island," whether that island is O'ahu or Manhattan.

But there are even stronger special reasons to hold this president to account. With normal presidents, one can depend on informal norms to do some work.  Normal presidential candidates release their tax returns. Normal presidents respect judicial independence and the free press, even as they sometimes think they are treated unfairly. In recent years, former presidents have used their post-presidency to earn unseemly sums, but they at least had the decency not to treat the presidency as a money-making opportunity while in the White House.

If there were any indication at all that Congress was willing to stand up to President Trump, then maybe, just maybe, one could justify an extra-legal decision to leave it to Congress to rein him in. But because that clearly is not about to happen, the job falls to the courts to enforce the letter of the law against a president who has no concern for its spirit.


Versus Trump: Trump The Racketeer?

11/1/18  //  Uncategorized

On this week's episode of Versus Trump, Jason and Charlie talk about a new lawsuit alleging that Trump and his children were part of a racketeering enterprise that engaged in fraud in connection with their supposed endorsement of a multi-level marketing operation. Listen now!

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

The Blumenthal & Nadler Decision: A Watershed in the Effort to Combat Presidential Corruption

10/3/18  //  Commentary

On Friday, Judge Emmet G. Sullivan ruled that the plaintiffs in Blumenthal, Nadler, et al. v. Trump have standing to sue the President for violating the Constitution’s Foreign Emoluments Clause.

Louisiana’s Ongoing Ethical Crisis: Why SCOTUS Should Weigh In On The Case Of Rogers Lacaze

8/22/18  //  Commentary

In the coming weeks, the U.S. Supreme Court will consider whether to grant Lacaze v. Louisiana, a case raising profound questions for the constitutional standards governing judicial recusal where a judge has --but does not even disclose--concrete connections to the case being tried before him.

Take Care