Friday, January 5, 2018

No. 247: Donald Trump and the Emoluments Clauses of the U.S. Constitution—A Further Update

In No. 213 (posted April 14, 2017) and No. 216 (May 4, 2017), I wrote about a lawsuit that Citizens for Responsibility and Ethics in Washington (CREW) filed on January 23 against President Donald J. Trump. CREW filed an amended complaint on April 18 and a second amended complaint on May 10. The amended complaints expanded on the allegations and involved additional plaintiffs. Here I provide a further update. (See CREW v. Trump, U.S. District Court, Southern District of New York, Case No. 1:17-cv-458.)

The Judges
The case was assigned initially to U.S. District Judge Ronnie Abrams. President Obama nominated her in July 2011, and the Senate confirmed her in March 2012. On July 11 the case was reassigned to U.S. District Judge George B. Daniels. President Clinton nominated him in August 1999, and the Senate confirmed him in February 2000. No reason for the reassignment of the case was given.

The Amicus Briefs
To say the case has drawn a great deal of attention is an understatement. The case generated many amicus briefs from legal scholars, legal historians, former government ethics officers, members of Congress, and others.

The Motion to Dismiss
On June 9 the defendant filed a motion to dismiss the case. The parties filed briefs in support of and in opposition to the motion. On October 18 Judge Daniels held a conference on the motion. On February 6, 2018, a transcript of the conference will become readily available to members of the public.

The Memorandum and Order
On December 21 Judge Daniels issued a memorandum opinion and order granting the defendant's motion to dismiss the case. Here are five key sentences (without citations) and one footnote from the introductory section of the memorandum opinion and order:
  • Plaintiffs principally allege that Defendant's "vast, complicated, and secret" business interests are creating conflicts of interest and have resulted in unprecedented government influence in violation of the Domestic and Foreign Emoluments Clauses of the United States Constitution.
  • Plaintiffs seek (i) a declaratory judgment declaring that Defendant has violated and will continue to violate the Domestic and Foreign Emoluments Clauses; (ii) an injunction enjoining Defendant from violating the Emoluments Clauses; and (iii) an injunction requiring Defendant to release financial records in order to confirm that he is not engaging in further transactions that would violate the Emoluments Clauses.
  • Defendant argues that Plaintiffs lack standing to sue and moves to dismiss this lawsuit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(1).
  • Defendant also moves to dismiss this case for failure to state a claim under the Emoluments Clauses pursuant to Federal Rule of Civil Procedure Rule 12(b)(6).
  • Defendant's motion to dismiss for lack of standing under Rule 12(b)(1) is GRANTED.
  • Footnote: Because Plaintiffs' claims are dismissed under Rule 12(b)(1), 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). Nor does this Court address whether the payments at issue would constitute an emolument prohibited by either Clause.
A notice of appeal to the U.S. Court of Appeals for the Second Circuit must be filed within 30 days of the ruling, or 60 days if an officer of the U.S. is a party, and an extension may be requested. The timetable for the filing of briefs is set by the appellate court.

A Related Case
In No. 213 I mentioned a related case. On February 10 William R. Weinstein filed a lawsuit on behalf of himself and the U.S. people. He is an attorney, a citizen of the United States and New York State, and a resident of the Southern District of New York. He represents himself and is counsel for a proposed class. Weinstein filed an amended complaint on March 7 and a second amended complaint on June 2.

The defendants are Donald J.Trump, Donald J. Trump, Jr., Eric Trump, and Allen Weisselberg. The latter three defendants are trustees of a publicly described but not publicly named trust. On July 7 the defendants filed a motion to dismiss the case. The case was assigned initially to Judge Abrams, and on July 11 it was reassigned to Judge Daniels. On December 21 Judge Daniels issued a memorandum and order granting the defendants' motion to dismiss the case. (See Weinstein v. Trump, U.S. District Court, Southern District of New York, Case No. 1:17-cv-1018.)

General Observations
I am disappointed and troubled by the failure of the CREW case to survive the defendant's motion to dismiss. However, I think the case is not over, because I believe that CREW will appeal the ruling to the Second Circuit. I do not know whether Weinstein will appeal the ruling in his case. I plan to report further when significant developments occur at the appellate level.

Available Material
I am offering a complimentary 40-page PDF consisting of Judge Daniels' memorandum opinion and order in the CREW case (29 pages) and his memorandum and opinion in the Weinstein case (11 pages). Email and ask for the January 2018 package relating to the emoluments lawsuits against Trump.