To a certain segment of the American population – those who have spent the past 336 days (but who’s counting?) dreaming of the end of the Donald Trump presidency – the two words that have given them the most hope have been “Mueller” and “emoluments.” Almost everyone knows that the Robert Mueller investigation is moving forward amid serious questions whether Donald Trump will fire him, so let’s talk about what’s happening with the emoluments issue.
Days after Trump became president, the Center for Responsibility and Ethics in Washington (CREW), a good government watchdog group, brought a lawsuit against the president claiming that his continuing to own his hotel chains around the world was an illegal emolument. Yesterday, crushing the hopes of those looking to topple Trump, a federal judge threw this lawsuit out of court.
So why in the world were people pinning their hopes on a word that almost no one even knew existed before the end of 2016? Because the Constitution contains a previously little noticed or used clause saying the following: “No person holding any office or profit of trust under [the United States] shall, without the consent of Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Put in plain English, the clause prohibits officers of the United States from accepting gifts or any other fee or item from foreign leaders. The clause’s purpose is quite obvious – to prevent foreign leaders from holding undue influence over American officers.
What’s this have to do with Donald Trump? Well, unless you’ve completely ignored everything about our president, you know that he has hotels all over the world. The theory of the lawsuit against him is that, now that he’s President of the United States, foreign leaders will stay in those hotels over competitors as a way to curry favor with the president. Think about it this way: If you’re the head of state of another country that needs to win President Trump over for your country’s benefit and you need a hotel room for the night when you’re traveling, would you choose a Trump hotel or one of his nearby competitors? CREW and a few competitor hotel owners claim in their lawsuit that the foreign dignitaries will choose the Trump hotel, thus both enriching the President and winning him over as a result. To the plaintiffs, Trump’s continued ownership of these hotels while President is a violation of the Emoluments Clause and is a signal that he is being bought by foreign leaders.
In response to the lawsuit, the Trump administration made several claims. Their most substantive response was that paying a hotel bill is not a “present” or “emolument” but rather an ordinary business transaction. To Trump, a foreign leader engaging in such a small-time deal with a Trump business has nothing to do with American foreign policy and is not ripe for the corruption the Constitution prohibits.
Yesterday, a federal judge in New York sided with Trump, but not on the substantive aspect of the case. Rather, the judge threw the case out of court for two technical legal reasons – because the plaintiffs lacked standing and because the case was a political question. Both of these doctrines are prerequisites to getting a hearing on the meat of the claim, and the court found that the plaintiffs failed both of them.
First standing. The idea of standing is that the plaintiff in a case in federal court has to be someone actually injured by the claimed action. For example, if you’re a cis-gender person, you can’t sue to stop the Trump administration from banning transgender people from the military, no matter how much you care about the issue and feel the ban is unconstitutional. You can’t even sue if you’re just a civilian transgender person who has no connection to the military and no plans of ever joining. In both cases, you are not personally injured by the ban, even if you are deeply opposed to and upset by it. The person who has standing will have to be a trans person in the military or a trans person who is applying to join the military. Those people are harmed by the ban, so they will have standing.
In the emoluments case, the court said that none of the plaintiffs had standing. The ethics group is just like any other American upset about Trump – they feel deeply about his problems, but aren’t specifically harmed by him. The competitor hotel owners are more closely connected, but even they, according to the court, can’t prove that they have lost business from foreign leaders choosing Trump hotels over their hotels. Thus, they may fear this as a possibility, but they didn’t show that it actually happened. Without doing so, the plaintiffs were not injured by Trump hotels and could not bring this lawsuit.
But the court went even further and ruled that no one could bring this lawsuit, even someone who was directly injured and could prove standing. This part of the decision found that the case was a political question, meaning this is the type of case where courts shouldn’t ever get involved. To the judge who ruled yesterday, the Constitution’s reference to Congress enforcing the Emoluments Clause means that our only real remedy for Trump’s potential for corruption is to take it up with Congress, not the courts.
This part of the decision is the bigger dagger in the heart for those hoping the Emoluments Clause would take down Trump. It means that the only solution to possible corruption is Congress. And given this Congress’s allergy to taking on the president, barring an appeal of this case reaching a different outcome, we’re left to focus instead on that last remaining word of hope – Mueller.