Will Politics Derail Suit Over Trump Business Deals?

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By Kimberly Strawbridge Robinson

Calls for the judiciary to stay out of the emoluments controversy surrounding President Donald Trump are just distractions meant to shift focus away from Trump’s unconstitutional actions, longtime Harvard constitutional law professor Laurence H. Tribe said Jan. 24.

Tribe is one of several prominent legal scholars suing the president for potential conflicts arising from his business enterprises. They claim that Trump’s business ties run afoul of the Constitution’s emoluments clause.

That clause is “obscure even within the more obscure parts of the Constitution,” Joshua Matz, of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, who has written about the emoluments suit, said Jan. 24.

Generally, the clause prohibits certain federal officials from accepting gifts or emoluments from foreign officials.

The suit, which was filed just three days after Trump took office, faces several legal hurdles right off the bat.

One is the “political question doctrine,” which says that federal courts should stay out of controversies that the Constitution has delegated to the other branches of government.

“There is every reason for the courts to stay away from this issue,” Josh Blackman, a professor at the South Texas College of Law Houston, said on his blog Jan. 22.

But Tribe disagrees. This is the kind of question that is clearly committed to the courts, Tribe said.

Currying Favor

The basic purpose of the emoluments clause “is to prevent foreign powers from giving the president and others things of value in an attempt at currying favor with them and corrupting their interest on behalf of the United States,” Matz said.

“Trump may be guided not only by the public interest of the United States and its people, but by the interests of the business the bears his name,” Matz said.

The lawsuit seeks to have federal courts put a stop to that.

Self-Inflicted Harm?

Another obstacle to the suit is whether the plaintiffs have “standing"—the legal ability to bring such a suit.

The question is whether the plaintiffs here—including an ethics watchdog organization—have been uniquely harmed by the president’s actions.

Blackman argues that the injury here is “self-inflicted,” and that they shouldn’t be allowed to press their claims.

“In short, the complaint argues” that because the watchdog group “is spending time on Trump’s emolument issue, they are not able to do things they would otherwise do,” Blackman explains.

That “argument for standing is incredibly weak,” Blackman said.

Plaintiffs with sufficient injuries may file similar suits soon, he notes.

Political Remedy

Different plaintiffs may be able to avoid the standing question, but the political question issue will be present in every case.

It’s difficult to conceive “what sort of remedy could be ordered by a court,” Jonathan H. Adler, of Case Western Reserve University School of Law, wrote for The Volokh Conspiracy blog.

“In other words, if there are concerns about how President Trump handles his various investments, the only remedies will be political,” Adler said.

One indication that a question should be left to the political branches is a “textually demonstrable constitutional commitment of the issue to a coordinate political department,” Blackman said, citing Baker v. Carr, 369 U.S. 186 (1962).

The emoluments clause does exactly that, Blackman said.

The clause, at article I, §9, says “no person holding any office of profit or trust under them shall, without the consent of the congress, accept of any present, emolument, office or title, of any kind whatever, from any king, prince, or foreign state.”

Therefore, the emoluments question is one committed to Congress alone, Blackman suggests.

Sleight of Hand?

That argument is just “linguistic sleight of hand,” Tribe said.

The clause allows Congress to consent to the emolument, but says nothing about whether the clause itself has been violated, Tribe said.

He acknowledged that a few decades ago, Blackman might have been correct that the political question doctrine would bar the suit.

But the doctrine has been “profoundly transformed,” Tribe said.

He pointed to the Supreme Court decision in Zivotofsky v. Clinton, 566 U.S. 189 (2016).

That case involved one branch of government seemingly recognizing Jerusalem as the capital of Israel, with another staying neutral on the issue.

Despite the “highly political nature” of the issues surrounding the case, the legal question boiled down to “whether one or another of the main political branches had violated the Constitution,” Tribe said.

In an 8-1 opinion, the court had no trouble determining that it could decide that question, he said.

Tribe added that the most “political” thing about the present case was Trump’s lawyers’ attempts to get courts to duck the issue.

Tribe and Matz spoke during a Jan. 24 press call put on by the progressive American Constitution Society.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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