Rule of Law

DC Circ. Skeptical Of Dems’ Standing In Emoluments Suit

Two D.C. Circuit judges seemed skeptical Monday that a group of congressional Democrats has standing to sue President Donald Trump for hosting foreign dignitaries at his privately owned hotels, but also questioned Trump’s stance that Congress as a whole lacks a cause of action.

In sometimes testy oral arguments that Sen. Richard Blumenthal, D-Conn., who is leading the Democrats’ suit, observed in person, U.S. Circuit Judges David S. Tatel and Thomas B. Griffith probed in detail whether some members of Congress can prove potential injury even when the entire House or Senate has not authorized a legal action alleging an institutional injury.

Blumenthal and other Democrats accuse Trump of reaping private financial windfalls off the presidency as officials from other countries stay at his hotels, possibly in an attempt to curry favor with the White House. The lawmakers point to the U.S. Constitution’s ban on taking foreign emoluments not approved by Congress.

But the U.S. Department of Justice, representing the president, pursued a two-front attack on the lawsuit, arguing not only that Blumenthal and his co-litigants can’t show Article III standing, but that in contrast to the constitutional ban on domestic emoluments, the foreign payments clause does not flatly make the disputed transactions illegal.

The Democrats’ complaint “suffers from multiple fundamental flaws,” not least of them the Article III standing problem evidenced by their lack of support from a majority of Congress, according to DOJ attorney Hashim Mooppan. Without institutional backing, they can’t clear the hurdle to bring their own suit, he told the judges. “That by itself is going to be dispositive in this case.”

The issue of standing was a persistent issue in Monday’s arguments. Elizabeth Wydra of the Constitutional Accountability Center, representing the Democrats, opened her argument on the suit’s merits, but Judge Griffith almost immediately jumped in to question her about standing.

“You are not here representing the House?” he asked Wydra — nor, he asked, did they represent the Senate as a body? The argument against standing would be that “you are not here under their authority,” he concluded.

The judge said to achieve standing, the suit would have to fit into the mold of two Supreme Court decisions, Raines v. Byrd in 1997, holding that members of Congress lacked personal injury for standing, and Coleman v. Miller in 1939, concerning whether Kansas state legislators had standing to sue the lieutenant governor over ratification of a constitutional amendment.

The Kansas lawmakers were found to have standing. In Raines, the court held that individual members of Congress could still sue the executive even if they lacked personal standing as long as they could show institutional injury such as vote nullification — precisely the argument that Wydra made Monday, saying that the legislative branch had been denied any chance to vote on whether Trump’s conduct was permissible.

But Mooppan argued on Trump’s behalf that a D.C. Circuit decision in 2000 — from a panel on which Judge Tatel also sat — in Campbell v. Clinton, in which lawmakers challenged the president’s use of war powers in the former Yugoslavia, was applicable to the instant dispute. That suit was tossed for lack of standing. Mooppan said but for the underlying issues, the two cases are virtually identical.

Judge Tatel also pressed Blumenthal’s side as to whether individual members have standing, citing Supreme Court Justice Ruth Bader Ginsburg’s observation in a recent case that “individual members lack standing to assert the institutional interests of a legislature.”

When Wydra noted that “that’s a very critical point,” the judge evoked laughter by replying, “Right — that’s why I asked.” But in response, she said the individual members could show harm to the institution generally by being denied any chance to vote on Trump’s accepting foreign payments.

Judge Griffith said the Democrats could get a resolution passed in the House and Senate to pursue litigation, which would clear up standing, saying, “They do it all the time.” Wydra replied that even without that there is an “admittedly narrow but not impenetrable window” in which individual members can file suit.

Standing, though a key issue, framed only part of Monday’s arguments. The judges also explored whether Trump’s congressional opponents had any recourse, absent a lawsuit.

Filed in June 2018 by 30 senators and 166 House members, the latter led by Rep. Jerrold Nadler, D-N.Y., the suit accuses Trump of violating the emoluments clause by continuing to profit from his private business, the Trump Organization, while in office. The complaint alleges the president has accepted payments, loans and regulatory actions from foreign governments without congressional consent. DOJ lawyers are trying to overturn a September 2018 trial court ruling that kept the Democrats’ suit alive.

The Trump Organization has since indicated it might sell its hotel in the Old Post Office building in downtown Washington, blocks from the White House, which has long been a magnet for controversy over alleged emolument violations.

The clause under which Democrats are suing was drafted to keep federal officeholders from accepting foreign emoluments “without the consent of the Congress,” according to the Article I text, but whether that means Trump has to report his business to lawmakers or refrain from putting foreign officials up at his hotels remains an open legal question.

It’s a question Judge Tatel latched onto several times and that he believed DOJ lawyers seemed to be wiggling out of answering. In trying to pin down what the administration’s lawyers consider to be the proper venue to challenge foreign payments, he asked Mooppan about the issue repeatedly.

Mooppan said that rather than suing the president for an “implied cause of action,” Congress can pass a law concerning emoluments or tackle them through appropriations.

Judge Griffith suggested that the president’s legal team had boxed themselves in on that issue because they have argued in a closely linked case — the Democratic effort to subpoena Trump’s financial records from his accounting firm Mazars — that his private business affairs are off limits to public scrutiny. Trump has argued that Congress has no legislative purpose for the subpoenas.

And Judge Tatel was unconvinced by Trump’s view that the constitutional framers never intended to provide a legal avenue for enforcing the emoluments clause, musing that the notion of a legislative fix seemed remote. “How could Congress pass a law without finding out what the president is doing with respect to emoluments?” he asked in a somewhat tense exchange. Judge Griffith asked a similar question.

More than once, Judge Tatel admonished Mooppan to let him finish talking and the judge got visibly exasperated with Mooppan over seemingly not answering him directly, after the DOJ lawyer said it was “complicated” to get into congressional oversight.

“It is not complicated to understand the position of the Justice Department in Trump v. Mazars,” he judge eventually told him, but added, “if you don’t want to answer the question, that’s fine.”

Trump has argued that his critics’ sweeping view of the emoluments clause would make almost every chief executive in history a violator, and that the framers could not have meant to bar federal officials from engaging in private business after taking office.

U.S. Justice Department attorneys have told the appeals court that U.S. District Judge Emmet G. Sullivan took too broad a view of the provision, urging the appeals court to instead “adopt an interpretation consistent with the plain text, historical practice and common sense.”

Even with pointed questioning from two of the panel’s judges Monday, it remained unclear where the appeals court could land on the rarely litigated issue. Throughout the arguments, U.S. Circuit Judge Karen L. Henderson did not ask questions of either side.

Following Monday’s arguments, Blumenthal told reporters that he thought Democrats had scored some good points with the court and, with respect to standing, “we as individual legislators cannot do our job unless the court gives us a remedy here.”

The White House had no comment.

U.S. Circuit Judge Karen L. Henderson, David S. Tatel and Thomas B. Griffith sat for the panel for the D.C. Circuit.

The lawmakers are represented by Brianne J. Gorod, Elizabeth B. Wydra and Brian R. Frazelle of the Constitutional Accountability Center.

Trump is represented by Hashim M. Mooppan, Mark R. Freeman, Michael S. Raab, Martin Totaro and Joshua Revesz of the U.S. Department of Justice Civil Division.

The case is Richard Blumenthal et al. v. Donald Trump, case number 19-5237, in the U.S. Court of Appeals for the D.C. Circuit.