See You in Court, Mr. President

The emoluments lawsuit against Donald Trump is an audacious gamble.

US President Donald Trump signs an executive order in the Oval Offoice at the White House in Washington, DC, on January 24, 2017.
President Trump signs an executive order at the White House in Washington on Tuesday.

Nicholas Kamm/Getty Images

On Monday, ethics watchdog Citizens for Responsibility and Ethics in Washington sued President Donald Trump for violating the Emoluments Clause, a constitutional provision that prohibits federal officials from accepting “any present, emolument, office, or title, of any kind whatever” from a foreign state without congressional approval. The clause clearly bars Trump from receiving payments from foreign governments, including from state-owned corporations. Yet Trump’s business empire, from which he refuses to divest, is continually receiving emoluments from foreign states in the form of cash, loans, licensing deals, and building permits. (In 18th-century parlance, an “emolument” was any good or service of value.) So CREW has asked U.S. District Judge Ronnie Abrams to rule that Trump’s acceptance of these emoluments is unconstitutional and prohibit him from taking any more.

Make no mistake: This suit may well fail. If it does, it could help Trump, taking emoluments off the table as grounds for impeachment and allowing his administration to dismiss the issue as fatuous harassment. Democrats would lose a potent rallying cry, and the emoluments criticism would fade from the political arena. The suit is an audacious gamble; it could certainly backfire. But even if it does, it will have a silver lining—functioning as the opening volley in a sustained assault on Trump’s unlawful conflicts of interest.

CREW’s first hurdle is the sheer novelty of its claim. The Emoluments Clause has never before been tested in court—although the legal luminaries who joined CREW’s complaint appear convinced that judicial intervention is necessary. Eminent constitutional law professors Laurence Tribe and Zephyr Teachout, as well as Erwin Chemerinsky, dean of the University of California–Irvine School of Law, are participating in the suit; so is Deepak Gupta, a Supreme Court advocate of considerable renown.

This imposing lineup of lawyers is clearly designed to send Trump the message that his conflicts of interest aren’t a frivolous distraction to be blithely waved away. The basic point, that Trump’s foreign payments present a grave constitutional concern, is clearly correct. And yet the merits of the suit itself may never be heard in Abrams’ courtroom, let alone the Supreme Court of the United States. That’s because CREW arguably lacks “standing”—a concrete and imminent injury that gives it the right to sue Trump. CREW asserts that it has standing because it investigates ethics violations, and constantly investigating Trump’s conflicts of interest will create a “drain on the organization’s resources.”

This theory rests on a 1982 Supreme Court decision called Havens Realty Corp. v. Coleman that blossomed into a generous interpretation of standing in the U.S. Court of Appeals for the 2nd Circuit, in which Abrams’ court is located. The judge may well decide, though, that this standing claim is simply a bridge too far, in which case she would be obliged to toss out the whole case. But Joshua Matz, an associate at Robbins, Russell who contributed to the Brookings white paper on emoluments that served as a kind of rough draft to the lawsuit, told me he found the theory “compelling”—and that the courts have a duty to act.

Matz hopes that the court finds Trump in violation of the Emoluments Clause and orders him to fully divest from his business; any other result, he said, would allow the president to maintain “financial interests that inevitably blur his loyalty with regard to foreign powers.” But that leads to CREW’s second big hurdle: The courts may decide that they have no business passing judgment on the president’s conflicts of interest, maintaining that they involve an inherently political question that courts are ill-suited to decide.

But in a conversation on Monday, Tribe told me he’s optimistic that the courts won’t punt on the case.

“This is a perfect example of something where the courts are quite ready to weigh in,” he said. “It’s clear that the old approach—treating every politically sensitive question as a potential ‘political question’—is gone. Once we get to the merits, the court will not say, ‘Ah, but we can’t decide that question; it’s only for Congress to decide.’ The Constitution states very clearly that foreign emoluments are absolutely forbidden unless Congress chooses to give its consent. And Congress has not given consent.”

I asked Tribe why he chose to litigate the issue, rather than pressure Congress to impeach Trump for accepting foreign payments.

“We are a country dedicated to the rule of law,” he said, “and those who spend their lives trying to interpret and understand and enforce the law naturally look at whether this is something we can get judicial help with.”

Moreover, judicial intervention may be the fastest way to remedy an extraordinarily serious problem.

“We want Trump to have the best interests of America at stake,” Tribe said, “and there’s no way of ensuring that under the current circumstances. He has divided loyalty. Right now, every time Trump makes a decision involving any of the dozens of countries where he has hotels or other enterprises, we can’t know what motivated it. Was it a desire to have better business relations with that country? A response to how much that country greased his palm? Or a desire to do what’s best for America?”

Tribe also sees the suit as a way to educate the public about Trump’s constitutional violations.

“Litigation can help bring important principles to light,” he said. “It helps me teach my students, and it performs an educational function vis-à-vis the public. Of course, I don’t take on causes that I feel confident I will lose purely for educational purposes. But win or lose, we’re going to help educate the public on something that’s very important.”

Even if the CREW suit fails because of standing or some other hurdle, it isn’t the only group seeking to tackle Trump’s conflicts of interest in court. The American Civil Liberties Union is searching for a plaintiff to sue under the Emoluments Clause—preferably a hotel that loses foreign business to Trump’s hotel, which would make for a strong standing argument. And lawyers around the country are hatching plans to use the courts to halt Trump’s lawbreaking well beyond Emoluments Clause breaches, challenging his planned crackdown on immigrants and disturbing rejection of transparency.

As Elie Mystal has written in Above the Law, these fights are critically important, even if they ultimately prove to be futile. While a majority of congressional Democrats debate appeasing or collaborating with Trump, these lawsuits demonstrate that, in Mystal’s words, “private citizens will use what they have to frustrate the Trump regime.”

The emoluments fight may quickly run into a brick wall. Or it may lead to a court order forcing Trump to divest from his businesses. Either way, the Trump administration will be on notice that his constitutional contraventions will not go unchallenged. With this suit, Tribe, CREW, and the lawyers of the resistance have effectively given Trump an ultimatum: Comply with the Constitution, or we’ll see you in court.