Resistance tears roll as court throws out emoluments lawsuit

The U.S. Court of Appeals for the District of Columbia Circuit demolished the dream of a group of Democratic lawmakers to take down President Donald Trump over his overseas business deals on Friday.

The court tossed out a lawsuit brought by more than 200 congressional Democrats who sued the president for allegedly violating the Constitution’s emoluments clause which bars presidents from receiving gifts or payments from foreign and state governments.

The court said individual members of Congress lack legal standing to sue the president on this claim because they did not comprise a majority of either the Senate or House when they filed the lawsuit and therefore did not represent either chamber.

During oral arguments in December Judge Thomas Griffith told a lawyer for the 215 members, “You are not Congress. You are not here representing Congress.”

The lawsuit was brought in 2017 by congressional senators and House members, including Senator Richard Blumenthal of Connecticut.

Two other cases testing Trump’s compliance with the Foreign Emoluments Clause of the Constitution have not been faring well in courts around the country. The legal issues involved have rarely been scrutinized by the judicial system.

The Fourth Circuit Court of Appeals is expected to rule on an emoluments lawsuit brought by the Democratic attorneys general for D.C. and Maryland and the Second Circuit is also considering a lawsuit revived last year by the liberal group Citizens for Responsibility and Ethics in Washington.

In their 12-page decision the panel of appeals judges wrote Friday, “The Members can, and likely will, continue to use their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit,”.

“But we will not — indeed we cannot — participate in this debate. The Constitution permits the Judiciary to speak only in the context of an Article III case or controversy and this lawsuit presents neither.”

“We’re disappointed in the panel’s decision and are considering next steps,” said Elizabeth Wydra, the president of the Constitutional Accountability Center, who is representing the Democrats in the case.

Trump handed over day-to-day control of his Trump Organization to his two adult sons, Donald Jr. and Eric, placing the assets in a revocable trust when he became president. They oversee the firm’s vast portfolio of local and international hotels, resorts and golf clubs, but the president still has ownership over the company.

Other presidents have placed their private businesses in blind trusts, but Trump has steadfastly refused to follow that precedent or liquidate his business holdings. His detractors insist that his businesses are likely to be receiving some money from foreign governments.

No Article III court has ever rendered an opinion on how either Emoluments Clause should be interpreted, though the Supreme Court has offered interpretations of the term “emoluments” three times as it appears in Foreign Emoluments Clause-related statutes periodically enacted by Congress since 1881.

It has consistently adopted the same definition of emoluments.  Ordinary business transactions are not emoluments.  There must be a nexus between the payment and the office.  An emolument arises “when a pecuniary profit is derived from a discharge of the duties of the office” (Hoyt v. United States, 51 U.S. 109).

Some legal scholars argue that any profit Trump receives comes directly from his businesses, not his high office, insisting that only when a president uses his office to confer a benefit in exchange for foreign money is he in violation of the Constitution.