Will the Democrats’ lawsuit against Trump work?

By Jill Disis

Democrats say President Trump is for sale — and they’re taking him to court to stop it.

Some of the nearly 200 Democratic lawmakers suing the president over his business holdings argue that Trump’s refusal to respect the Constitution left them no choice.

“We don’t do this out of any sense of partisanship, but because President Trump has left us absolutely no other option,” Representative John Conyers of Michigan said on Tuesday.

The suit claims Trump is violating the Foreign Emoluments Clause of the Constitution by accepting foreign payments through his empire of hotels, golf courses, trademarks and other properties, all without the consent of Congress.

Trump refused to sell his business holdings when he took office. Instead he shifted the assets to a trust in his name. If the business succeeds while he is president, he will ultimately profit.

And the Democrats say foreign money is helping enrich him. The lawsuit cites press reports about a Saudi government-backed lobbying firm that paid for a room at Trump’s luxury hotel in Washington in January, and a celebration held there in February by the Embassy of Kuwait.

Lawsuits brought by members of Congress against presidents or their administrations aren’t unprecedented, but the latest is significant for its scope.

The Republican-controlled House of Representatives sued President Barack Obama’s administration three years ago over its handling of the Affordable Care Act. That case is still pending.

But the lawsuit against Trump is unusual because it concerns his actions as a private citizen, said Kermit Roosevelt, a constitutional law professor at the University of Pennsylvania Law School.

The White House has said it expects the Justice Department will move to have the case dismissed. The Justice Department this month asked a federal court to throw out a similar suit filed by a government ethics watchdog group and some businesses.

But lawmakers, in a press briefing on Tuesday, insisted they had special reason to bring this case. And though the Foreign Emoluments Clause has never been tested in court, they claimed the law would still be on their side.

“There is a line of cases that say, essentially, when the president denies Congress the opportunity to vote, then members of Congress have standing,” said Senator Richard Blumenthal of Connecticut.

Their lawsuit cites a case from 1979: Senator Barry Goldwater and other lawmakers sued President Jimmy Carter over his decision to nullify a treaty with Taiwan.

The Supreme Court ruled against Goldwater, but it didn’t deny his ability to bring a lawsuit, said Brian Frazelle, appellate counsel at the Constitutional Accountability Center, which is working on the congressional lawsuit.

Frazelle said a lower court granted standing to Goldwater and the other senators based on their claim that Carter had deprived them of a vote to stop the treaty from ending.

That kind of argument could help the Democrats, said Stan Brand, a Washington attorney who once served as general counsel to the U.S. House of Representatives under former Speaker Tip O’Neill, a Democrat.

Brand said lawmakers can argue that Trump has stripped them of their power to serve as a check on the president. The Emoluments Clause says only Congress can grant an exception and allow the president to accept gifts from foreign governments. But Trump hasn’t asked.

Others weren’t so sure. Roosevelt said he thought the argument for standing was weak because this case lacks the “direct interference” at the center of the Goldwater case.

“What they’re saying is, basically, in all of the ways in which we interact with the president — we pass a bill and the president signs it and vetoes it — we’re concerned that he’s going to be behaving corruptly, and that tarnishes our ability to faithfully exercise our duties,” Roosevelt said.

Another factor: Even having this many lawmakers sign on might not be enough.

David Rivkin, a constitutional lawyer who was one of the architects of the GOP-led House’s lawsuit against Obama, said standing can only be achieved when Congress as an institution sues the president, not individual members — even if it’s nearly 200 of them.

The Obama lawsuit, for example, was approved by a House resolution. The chamber voted in favor of authorizing the challenge 225 to 201 under then-Speaker John Boehner. Five Republicans and every Democrat opposed.

“No matter how many members you have, as long as you do not have institutional authorization, you would not be able to gain standing,” Rivkin said.