One of the earliest, and dumbest, mantras of #TheResistance since Trump won the election was that Trump’s continued business interests violated the Emoluments Clause of the Constitution.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. [ARTICLE I, SECTION 9, CLAUSE 8]

It was at the heart of the efforts to delegitimize Trump supported by the leftist activist group CREW, which used to be run by David Brock. Brock’s replacement as Vice Chair, Richard Painter, is a Twitter star and frequent cable news anti-Trump hothead who plays off his former position as an ethics advisor to George W. Bush.

Law professor Larry Tribe and other anti-Trump law professors, gave a false patina of credence to the claims.

Independent scholar and law lecturer Seth Barrett Tillman, assisted by law professor Josh Blackman submitted historical research as a friend of the court (amicus curiae), arguing that the Emoluments Clause did not apply to the President. That generated it’s own legal community fireworks, as the NY Times reported, ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm.

Yet there never was anything of substance to the Emolument Clause claim, and the Court just threw it out. A full copy of the Order (pdf.) is embedded at the bottom of this post.

Buzzfeed’s legal reporter Chris Geidner summarizes:

A federal judge on Thursday dismissed a lawsuit brought by one of the organizations claiming that President Trump’s continued ownership of his businesses create conflicts of interest that violate the Constitution. The judge, US District Judge George B. Daniels, also ruled that it is up to Congress to decide whether there are any valid concerns raised by foreign governments doing business with Trump’s businesses and, if so, what to do about those concerns…. Daniels ruled that CREW lacked standing because it could not point to an injury it suffered due to the alleged constitutional violation and that the hospitality industry-related plaintiffs could not show that their claim of “competitor standing” could be redressed by the court — or even that the emoluments clauses were intended to protect competitors. “CREW’s entire reason for being is to investigate and combat corruption and reduce the influence of money in politics through, among other things, education, advocacy, and litigation,” Daniels wrote. “CREW is thus not wasting resources by educating the public and issuing statements concerning the effects of Defendant’s alleged constitutional violations or even by filing suit; this is exactly how an organization like CREW spends its resources in the ordinary course.” Discussing the the hospitality industry plaintiffs, he wrote, “Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition.” As to the Foreign Emoluments claim specifically, Daniels wrote that it “is an issue committed exclusively to Congress.” To that end, he continued, “If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant’s conduct.”

Law Professor Josh Blackman tweeted some of the key findings:

2/ The court indirectly addressed the argument advanced by @SethBTillman and me. Rather than accepting Plaintiffs' position that Foreign Emoluments Clause applies to *all* federal officials, Judge Daniels said it applies to "certain" officials. pic.twitter.com/vrqaCAmb2p — Josh Blackman (@JoshMBlackman) December 21, 2017

3/ Though I am perplexed by Footnote 2. Judge Daniels wrote "Defendant has conceded that he is subject to the Foreign Emoluments Clause." The government said the *exact* opposite "the government has not conceded that the President is subject to the FEC." DOJ should correct this. pic.twitter.com/Xa5s3Dgzdq — Josh Blackman (@JoshMBlackman) December 21, 2017

5/ Crux of competitor standing analysis: "It is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's 'incentives' or instead results from government officials' independent desire to patronize Defendant's businesses" pic.twitter.com/LYqX493omf — Josh Blackman (@JoshMBlackman) December 21, 2017

8/ Court finds"@CREWcrew fails to allege either that D's actions have impeded its ability to perform a particular mission-related activity or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct" pic.twitter.com/B2SRCv0cMm — Josh Blackman (@JoshMBlackman) December 21, 2017

11/ Regarding @CREWcrew "self-inflicted injury," CREW "sought out and voluntarily undertook efforts to investigate…and ultimately bring suit over Defendant's allegedly unlawful conduct, raising the prospect of manufactured standing, about which courts are justifiably concerned" pic.twitter.com/yoBxNDqNTT — Josh Blackman (@JoshMBlackman) December 21, 2017

12/ Court finds that FEC is "a textually demonstrable constitutional

commitment of the issue to a coordinate political department" and thus "Congress is the appropriate body to determine whether, and to what extent, Defendant's conduct unlawfully infringes on that power" pic.twitter.com/SPRxcHXpC6 — Josh Blackman (@JoshMBlackman) December 21, 2017

Seth Barrett Tillman notes the court never decided whether the Emoluments Clause applies to the President:

CREW v Trump slip op. at 2 n.1: "Because Plaintiffs' claims are dismissed under Rule 12(b)(l), this Court does not reach the issue of whether Plaintiffs' allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6)." /1 — Seth Barrett Tillman (@SethBTillman) December 21, 2017

"Nor does this Court address whether the payments at issue would constitute an emolument prohibited by either Clause." /2 — Seth Barrett Tillman (@SethBTillman) December 21, 2017

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CREW v TRUMP – SDNY Decision Dismissing Emoluments Lawsuit 12-21-2017 by Legal Insurrection on Scribd



