Rule of Law

Judges Question Democrats’ Right to Sue Trump on Emoluments Claim

U.S. appeals-court panel suggests lawmakers can’t bring valid case in their individual capacities

A federal appeals court questioned whether Democratic lawmakers had a legal right to sue President Trump on allegations he was improperly profiting from his presidency.

A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit suggested the lawsuit, filed in 2017 by roughly 200 Democratic members of Congress, was flawed because the lawmakers were suing in their individual capacities instead of bringing claims on behalf of the House and Senate.

“You can’t seek to protect the institutional interests of Congress,” Judge Thomas Griffith told a lawyer representing the Democratric lawmakers during oral arguments Monday. The case might be different, he said, if the House and Senate had passed resolutions authorizing the suit. Democrats had no real prospects for that official authorization when they sued because they were the minority party in both the House and Senate.

Judge David Tatel voiced similar views, saying the Democrats’ ability to sue appeared prohibited by a Supreme Court decision from June that said Virginia’s state House didn’t have legal standing to bring a case that challenged state voting districts.

“Why aren’t we bound by language like that?” Judge Tatel asked. Congressional Democrats, he said, would need to direct their arguments to the Supreme Court if they thought their case should be allowed.

A third judge, Karen LeCraft Henderson, asked no questions.

The D.C. Circuit is reviewing an appeal by the Trump administration after a trial judge earlier this year allowed the case to proceed.

House and Senate Democrats argue in the lawsuit that Mr. Trump is violating the Constitution because his private business empire is profiting from foreign governments paying hundreds of thousands of dollars to patronize his hotels, resorts and other properties to build positive relationships with the president.

Under a clause of the Constitution addressing foreign emoluments—things of value—Mr. Trump can’t accept benefits from foreign governments without the consent of Congress, the Democrats allege.

By not seeking this consent, Mr. Trump is denying lawmakers the ability to vote on whether he can accept such gifts, lawyer Elizabeth Wydra, representing the Democrats, told the appeals court.

Justice Department lawyer Hashim Mooppan, defending the administration, said the Democrats’ lawsuit was extraordinary and couldn’t proceed. Congress has other ways to address emoluments concerns without going to court, Mr. Mooppan said. On the underlying merits of the lawsuit, the department has argued that Mr. Trump’s share of business profits from governmental customers doesn’t count as a prohibited emolument.

Judges took time to criticize the Trump administration’s position, even as they questioned the Democrats’ right to sue.

Judges Tatel and Griffith each said Mr. Mooppan’s arguments were hard to square with positions the Justice Department is taking in other cases where Mr. Trump is fighting congressional oversight powers, including lawmakers’ ability to subpoena the president’s financial records.

It can’t be true that the framers of the Constitution added emoluments provisions to the Constitution but gave Congress no way to actually enforce them, Judge Tatel told Mr. Mooppan.

A ruling is expected in the next few months.

The case is one of three similar and notable lawsuits that have been proceeding through the federal courts.

The New York-based Second Circuit Court of Appeals in September ruled that plaintiffs representing hotels and restaurants that compete with Mr. Trump’s businesses could move forward with claims that the president was accepting improper benefits of his office.

On Thursday, the Fourth Circuit Court of Appeals, based in Richmond, Va., is set to consider the validity of an emoluments lawsuit against Mr. Trump filed by the attorneys general of Maryland and the District of Columbia.

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