Appeals court dismisses 'emoluments' lawsuit involving President Trump's D.C. hotel

[BumRushDaShow]

Source: Washington Post




A federal appeals court Wednesday sided with President Trump, dismissing a lawsuit claiming the president is illegally profiting from foreign and state government visitors at his luxury hotel in downtown Washington. The unanimous ruling from the U.S. Court of Appeals for the 4th Circuit is a victory for the president in a novel case brought by the attorneys general of Maryland and the District of Columbia involving anti-corruption provisions in the emoluments clauses of the U.S. Constitution.

The president is facing series of legal challenges related to his private business, including a separate lawsuit from Congressional Democrats. The emoluments clauses at issue in the 4th Circuit case were designed to prevent undue influence on government officials but have never been applied in court to a sitting president. Despite the legal challenges his company faces, to this point Trump has been able to prevent the release of any private business information to the courts, leaving Democrats to wonder if Trump will be affected by any of the inquiries before he goes up for re-election next year.

In its ruling Wednesday, the three-judge panel said the attorneys general lacked legal standing to bring the lawsuit alleging the president is violating the Constitution when his business accepts payments from state and foreign governments. The decision -- from Judges Paul V. Niemeyer, Dennis W. Shedd and A. Marvin Quattlebaum Jr. -- also stops dozens of subpoenas to federal government agencies and Trump's private business entities for financial records related to the D.C. hotel.

Maryland Attorney General Brian E. Frosh and D.C. Attorney General Karl A. Racine, both Democrats, have said they would consider appealing for a rehearing by a full panel of the 4th Circuit and would not be surprised to see the case reach the Supreme Court.

Read more: https://www.washingtonpost.com/local/legal-issues/appeals-court-dismisses-emoluments-lawsuit-involving-president-trumps-dc-hotel/2019/07/10/4a4b6190-886e-11e9-98c1-e945ae5db8fb_story.html

---

ETA - seems that the court didn't rule on the merits but that those bringing suit "didn't have standing". Let's hope I interpreted that correctly!

[BigmanPigman]

1. Three judges ruled in his favor...he can continue to gain wealth

for his personal gain and this is legal? Who appointed these three judges?

[BumRushDaShow]

4. They could request "en banc"

(get the full set of judges on that court) to rule.

[onecaliberal]

14. Don't know who the three are. This is the current 4th circuit

Chief Judge Roger Gregory Richmond, VA 1953 2000–present 2016–present — Clinton /
G.W. Bush[Note 1]
29 Circuit Judge J. Harvie Wilkinson III Charlottesville, VA 1944 1984–present 1996–2003 — Reagan
32 Circuit Judge Paul V. Niemeyer Baltimore, MD 1941 1990–present — — G.H.W. Bush
37 Circuit Judge Diana Gribbon Motz Baltimore, MD 1943 1994–present — — Clinton
39 Circuit Judge Robert Bruce King Charleston, WV 1940 1998–present — — Clinton
43 Circuit Judge G. Steven Agee Salem, VA 1952 2008–present — — G.W. Bush
45 Circuit Judge Barbara Milano Keenan Alexandria, VA 1950 2010–present — — Obama
46 Circuit Judge James A. Wynn Jr. Raleigh, NC 1954 2010–present — — Obama
47 Circuit Judge Albert Diaz Charlotte, NC 1960 2010–present — — Obama
48 Circuit Judge Henry Franklin Floyd Spartanburg, SC 1947 2011–present — — Obama
49 Circuit Judge Stephanie Thacker Charleston, WV 1965 2012–present — — Obama
50 Circuit Judge Pamela Harris Bethesda, MD 1962 2014–present — — Obama
51 Circuit Judge Julius N. Richardson Columbia, SC 1976 2018–present — — Trump
52 Circuit Judge A. Marvin Quattlebaum Jr. Greenville, SC 1964 2018–present — — Trump
53 Circuit Judge Allison Jones Rushing Asheville, NC 1982 2019–present — — Trump
33 Senior Circuit Judge Clyde H. Hamilton Columbia, SC 1934 1991–1999 — 1999–present G.H.W. Bush
38 Senior Circuit Judge William Byrd Traxler Jr. Greenville, SC 1948 1998–2018 2009–2016 2018–present Clinton
41 Senior Circuit Judge Dennis Shedd Columbia, SC 1953 2002–2018 — 2018–present G.W. Bush
42 Senior Circuit Judge Allyson Kay Duncan Raleigh, NC

[Tech]

27. Reagan, George w, and trump.

[The Velveteen Ocelot]

51. They didn't rule on the substance, only on whether these plaintiffs had standing to sue.

In federal lawsuits, plaintiffs have to allege that the defendant's actions have caused them to have suffered a direct, personal injury. They don't have standing if they allege only that they have a generalized interest in the action or that they have suffered an injury that is shared by all members of the public. This was an action by two state attorneys general, claiming Trump has violated the emoluments clause by using his office to profit from his businesses, but apparently this panel conluded that the attorneys general, as representatives of their states, did not show that this violation caused a direct, personal injury to their states. It is not a decision on the issue of whether Trump violated the emoluments clause.

[BigmanPigman]

53. That is a good explanation of the situation.

Much appreciated!

[Fiendish Thingy]

2. Wouldn't every/any American citizen have standing? Nt

[BumRushDaShow]

5. This is an odd issue given that the hotel in question is in the District

(I actually passed by it while on a tour down in D.C. last November) where the Congressional Rep. (Eleanor Holmes Norton) has little power herself. Even if you discount the MD AG, the D.C AG (didn't realize they had one) should at least have a say and standing.

[ewagner]

7. YES!!!

Try to get these McConnell robots to understand this! Good luck!

[onenote]

11. No. Just as not every citizen had standing to bring a birther lawsuit.

[The Velveteen Ocelot]

52. No. There are a ton of cases holding that a claim of generalized injuries

suffered by members of the general public does not satisfy the standing requirement.

[Farmer-Rick]

3. If the DAs of 2 States he's collecting bribes from don't have standing who would?

Is this yet another thing that can only be addressed through Impeachment?

[BumRushDaShow]

8. I would think this could be an Impeachment Article

But "impeachment" is not a criminal proceeding. It's a legislative tool that requires the Senate to "convict" in order to remove the President from office.

[in2herbs]

23. I think that most people on DU understand by now the Senate's role in any impeachment and

those in favor of proceeding with impeachment in the House know that the likely outcome in the Senate will be in Trump's favor. I feel that most people want an impeachment inquiry or proceeding to get the evidence/information into the public domain. If we don't initiate an impeachment inquiry/proceeding and don't take the Senate or the WH in 2020 the country is done for because 45's illegal activities will be buried, and IMO Pelosi will have retired and she will have no comment once out of office on the issue.

There were more than 3 million voters who were against Trump in 2016 -- probably more but that's hard to prove given the ballot box issues. Do you think those 3 million voters who voted for Clinton will vote for Trump or any R for president in 2020? I don't. We have an advantage and we need to seize it and stop believing we have to cater to Trump voters to win an election.

[BumRushDaShow]

26. I disagree

I keep running into OP after OP and post after post that displays complete ignorance about exactly what "impeachment" means, where folks hang their hats on such solving all things and the scourge will be removed.

I don't have an issue with getting a "formal" impeachment inquiry started but all the investigations that are going on right now ARE part of that process, whether you formally call it an "inquiry" or not. ALL of these tools are "fact-finding" to provide supportive evidence towards a potential "Articles of Impeachment".

And certainly I do not believe in catering to any idiotic opposition voters who voted because "NOT Obama" and/or they hated Hillary. But we are in a situation where the Constitution itself is facing a true test because it assumed that somehow, "honorable" elected officials would help to maintain it (knowing that there would always be dishonorable ones among their ranks). At this point in history, the GOP has few if any of those "honorable" left.

We write about the big 2010 turnover (something like 63 seats) but are not really dealing with the reality of the aftermath of that (thanks to Citizen's United that was decided that year) and what was put into office after that - including some who were even worse than the earlier draconian 2010 freshman class (often replacing some of them later down the road).

[ewagner]

6. This appears to be conservative judges latest trick...

The case wasn't dismissed on its merits it was dismissed on the basis of "standing"...

The Wisconsin gerrymandering case was dismissed on the same issue/nonissue..

Standing means that the plaintiff have to have a reason by harm, jurisdiction or venue to pursue the case. It's a cop-out but effective in stopping "troublesome" cases that force conservative judges to choose between their integrity and their political party.

I call BS!!!

[BumRushDaShow]

9. I do too

I can see a wild technicality of not considering the MD AG as having "standing". But the one who would be "harmed" (D.C. Attorney General) SHOULD have standing to continue because they are the chief LEO in D.C. where this hotel is located.

I just looked it up and the D.C. AG was originally appointed by the mayor but is now an elected office in D.C. as of 2015, so relatively new.

[onenote]

15. Standing is not a "trick"

Remember, standing is the concept that led to the dismissal of the birther suits.

I haven't had a chance to read the Fourth Circuit opinion, but the holding on standing doesn't come as a surprise.

[Farmer-Rick]

22. So, who do you think has standing? The other hotels in the area?

It seems it's an unfair advantage that the president of the United States owns hotels with his name on them. But that would Not be an emolument issue. They seems to say it's OK for Trump to profit off of being president. Selling the label of president of the United States for money is a OK. It just seems so corrupt.

So concerning emolument clause would Congress have standing to bring a law suit or would they have to impeach?

Seems no one would really have standing.

[ArizonaLib]

30. There should be a remedy for determining who has/gets/suffers standing

There has to be a precedent on which to base an appeal. Also, I don't believe the birther cases should have been dismissed based on lack of standing. They should have been class actioned, evidence heard, and those bringing the case should have been humiliated in court in front of God and everyone, closing the early and quick, instead of the discussion going into Obama's second term. That was ridiculous.

[onenote]

38. Members of Congress have sued and, so far, held to have standing.

[former9thward]

20. Standing is no one's "latest trick" and it is not a "nonissue".

It is as old as the Constitution and actually even older. It comes from English legal tradition from the Middle Ages. The very first thing any judge looks at with any lawsuit is does the plaintiff have standing to be in court. As a plaintiff you have to assert and demonstrate that you have standing in the initial suit paperwork. In this case I have not read the decision so I don't know the basis of lack of standing.

[SylviaD]

50. Yes. Trump profiting off the hotel is scummy, shady, and distasteful, but its legal. nt

[ewagner]

55. I understand this...however,

I think courts in recent times (say the last 10 years or so) have been very stingy in their determination of who has standing. I think they've been very very selective in the application of this principle.

[True Blue American]

31. But there are 2 cases

Still on going. It was only the fact they had no standing to sue.

[JustAnotherGen]

10. Okay D.C. Residents

You know what to do with the liquor license.

Folks - check out the liquor license law down there in D.C. I hope someone in D.C. as a citizen weighs in - I know there is movement around perhaps the Trump Cabal losing the license.

[ScratchCat]

12. Lets be honest about something

The biggest mistake the founding fathers made was assuming America would still have honorable people leading it 100, 200 years later.

We don't, and that's why you have many of these ridiculous rulings and why Trump is being allowed to get away with things likely no other President would have even dreamed of doing(out of morals and duty to the country).

Right now, we have a group of people too afraid to tell a.... wait for it.... life-long con man and reality show host - not a peer - that this is not how this country works. And its killing us more and more every day.

[LastLiberal in PalmSprings]

13. So, who exactly DOES have standing to enforce the emoluments clause?

Or is it just another part of the Constitution Trump is using to wipe his fat ass?

[onenote]

17. Members of Congress have sued. They likley have standing.

The same question you raise about who has standing could've been raised about the birther case dismissals on standing grounds.

Standing is not a well understood concept among non-lawyers and folks tend to like it when it goes their way and not like it when it doesn't.

[BumRushDaShow]

19. The elected office of the Attorney General of D.C. should be considered to have standing

I can see throwing out the MD AG, but the AG of D.C.?

[onenote]

39. What injury would he be asserting?

[BumRushDaShow]

43. Financial injury (including security costs among other things) for the city

since it seems all kinds of bills have YET to be paid to the city from the Trump Organization and/or Campaign since 2017... and the latest July 4th fiasco has pretty much bankrupted the city's security funding as it is (which is yet another thing to add to the list). Yet millions have been spent by foreign dignitaries to stay at the hotel on their state (or other) visits.

Case in point - https://www.washingtonpost.com/local/dc-politics/trump-still-owes-dc-7-million-in-inauguration-costs-as-he-plans-july-fourth-gala/2019/06/13/c55565b6-8df5-11e9-8f69-a2795fca3343_story.html?utm_term=.1283e7ec3469

https://www.washingtonpost.com/local/dc-politics/trumps-july-fourth-event-and-weekend-protests-bankrupted-dc-security-fund-mayor-says/2019/07/10/fb0d1de4-a316-11e9-b732-41a79c2551bf_story.html?utm_term=.dc8739bedf7c

[onenote]

44. Those are precisely the types of injuries the court found didn't confer standing

Plus, the failure to pay security costs for the inauguration and parade etc has nothing to do with the emoluments lawsuit.

The claims of injury in the emoluments suit focused on competitive harm to the District because it owns a Convention Center that it argues competes with the Trump property as well as the District claiming to sue on behalf of other hotels in the city that compete with the Trump hotel. The court's dismissal of those arguments actually is pretty convincing.

The lawsuit brought by members of Congress has, in my opinion, a better chance of surviving a standing-based challenge, although its not a slam dunk -- and even if it survives a standing challenge, there are other arguments that will be raised by Trump that might prevail. It is not a stretch to think that the ultimate outcome of these cases is a ruling that disputes relating to the Emoluments Clause are political questions not judicial issues.

[BumRushDaShow]

45. I'd personally like to see an en banc ruling...

There were only 3 judges who made that ruling. D.C. is a special case that can't be lumped into what might apply to a "state".

The financial issue (which is obviously part of the "competition" portion argued with their convention center mention) is real. If this court intends to proffer that only Congress has standing to argue Constitutional clauses (i.e., related to "emoluments" ) then we are pretty much starting to shred the fabric of the Constitution. I know there are other cases running through the courts at the moment so will have to see how those fare.

[onenote]

46. The court found that protection of competition was not in the "zone of interests" that the clause is

intended to serve.

And the reason members of Congress were found by Judge Sullivan to have standing to bring a Foreign Emoluments case is that Congress has a specific, express role to play under the Foreign Emoluments clause (and thus arguably its claim of injury falls within the zone of interests that the provision is intended to serve.

[BumRushDaShow]

47. I expect that if we manage to make it through this nightmare

and regain control of Congress and the Presidency, that all sorts of legislation needs to be enacted to codify "emoluments" and the reporting process of it a little more than what is in place at the moment.

[onenote]

48. You can be certain that as soon as there is a Democrat

In the White House the Republicans will support such legislation

[BumRushDaShow]

49. Ain't that the damn truth.

[SWBTATTReg]

29. Thanks so much for clarifying...I'm still unclear on 'standing' and ...

there is confusion in this DU trend that standing seems to indicate that the president, being unduly influenced by business and/or personal interests at his hotel and / or other businesses, would unduly do some things not in American interests (vs. his personal interests). Also, you pointed out the birther incident too as an example of when standing came into play.

Why would then, President Carter get rid of his peanut farm to avoid conflict of interest/emoluments? It seems like a double standard and it seems like either interpretation (keep or not keep assets). Confusing.

Since the president supposedly represents every single entity in the US, I would tend to think that everyone has a right to take the president (and anyone else in the executive branch) to court. Since members of the senate are elected by voters in each state, and thus AGs indirectly are (elected by voters in each state (but picked by governors and confirmed by state houses)).

As one trend stated, members of the senate can sue the executive branch In effect, everybody can demonstrate harm to them and/or their interests. What happens if a group of us citizens (lets say 100 of us) get together and decide to sue the president for emoluments violations, we would not be able to but our elected senators could? What happens if the senators join us 100 citizens in this legal action?

Confusing still to me...

[FBaggins]

34. Why would members of Congress have standing?

I don't think there would be much of a question that Congress itself has standing... but Congress acts through majority votes, not through the actions of members.

[onenote]

41. The reason Judge Sullivan gave

was tied to the fact that the receipt of foreign emoluments is prohibited "without the consent of Congress". His reasoning, as I understand it, is that Congress can sue since it has a specific role to play in consenting to emoluments.

Will that be upheld on appeal? Don't know. And if it isn't does it mean no one has standing? Probably. And while that seems wrong, it actually isn't. The courts have indicated that if no one has standing it is an indication that the matter at hand is one that was committed to the political branches for resolution, not the judiciary.

[LastLiberal in PalmSprings]

54. I was a lawyer who started out as a law clerk for a circuit judge.

I still don't understand standing. It seems like trying to catch a cloud with your hands.

I do understand the term "activist judge." It's a term only the GOP uses, and it refers to a judge who doesn't rule in their favor.

[unblock]

16. The problem with the "no standing" argument is

Ok, if they don't have standing, then who does?

If the emoluments clause is in the constitution, it's meant to be enforced somehow. They wouldn't have put it in there if it could be ignored because no one has standing.

It's not unreasonable for the courts to take a view on who has standing, but it is unreasonable to take a view that no one has standing.

So eventually the courts will have to clarify who can enforce the emoluments clause. And it also doesn't make sense for it to only be through impeachment because it then becomes useless as a separate clause.

Of course, by then, Donald fraud's term will be over and republicans will demand detailed accounting of every nickel the next democratic president receives....

[onenote]

18. Again, members of Congress have brought their own suit and were found to have standing

See post #17

And as the next post discusses, it is entirely possible for a situation to arise where no one has standing.

[FBaggins]

33. Not really

So eventually the courts will have to clarify who can enforce the emoluments clause.

There is no assumption in law that someone must have standing to sue. Instead, SCOTUS has said that the lack of someone with standing would merely mean that the question involved was a political one (to be dealt with either through the ballot box or impeachment), and not something the courts could remedy.

395 Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482–486 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 225–226 (1974). Nor is the fact that, if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id. at 227.

Given the current court makeup and the fact that the emoluments clause(s) lack any enacting legislation or specified remedies... I suspect that's where SCOTUS would end up (that it is a political question and not for the courts).

[unblock]

35. but it's a basic principal of constitutional interpretation that clauses were written for a reason.

i agree that there may be some situation where no one has standing to sue. for instance, there are certain powers granted to potus that no one has standing to sue for failure to utilize. it's up to congress to impeach and remove for dereliction of duty, if they see fit to do so. certainly that would be a reasonable view for the supreme court to take.

but the emoluments clause was specifically included for a reason, and surely that reason was not to simply pad the list of "high crimes and misdemeanors" for which congress already had the power to impeach and remove. especially because it really adds nothing to that list anyway, as taking emoluments from foreign powers would have already been considered by the founders as a high crimes and misdemeanor.

so surely they meant for it to be enforced by means other than impeachment, otherwise they would not have spelled it out.

your point about the lack of enacting legislation might be the way out for the current court. they could say that congress could create laws to prevent or punish or reclaim emoluments, and those would be constitutional; but without having done so to date, there is no consequence to taking emoluments other than impeachment.

[FBaggins]

36. That's actually discussed a bit in the 4th Circuit's ruling

As well as the former CREW ruling that the 4th cited.

As you say... the clauses were written for a reason. But that reason was not to keep the president from unfairly competing with other businesses (one of the key claims in this case). The ratifying process made clear that the clauses were there to prevent presidential corruption in the first case and presidential independence in the second.

It's pretty well established that claims like "I'm an American citizen and we all deserve to have a President free from such corruption" does not grant standing... so the question remains "who would have such standing"? I have no doubt that a plausible claim could be made... but I'm not sure there's one that gets past this SCOTUS. As you recognized above... Congress has the power to clarify.

[PoliticAverse]

21. NBC News story...

https://www.nbcnews.com/politics/donald-trump/appeals-court-dismisses-emoluments-clause-case-against-trump-n1028216

[yaesu]

24. so the emoluments clause is no longer enforceable. nt

[Thomas Hurt]

25. it is enforceable by those who have standing, may be, if it were clear who has that beyond Congress.

still have to work out if Trump is violating the clause.

[True Blue American]

32. There are 2 more cases!

[Yo_Mama_Been_Loggin]

28. Bullshit!

[mahatmakanejeeves]

37. The 4th Circuit's dismissal of this suit leaves two other Emoluments Clause suits in place,...

The 4th Circuit’s dismissal of this suit leaves two other Emoluments Clause suits in place, and anyway the dismissal was only about standing. None of the results to date undercuts impeachment based on Trump’s violation of this foreign corruption clause.

Link to tweet

[YOHABLO]

40. His entire Presidency is being used to benefit him and his crime family. What a joke.

[onenote]

42. Here is the decision

http://www.ca4.uscourts.gov/opinions/182486.P.pdf

The first half is on the procedural question of whether the appeals court should intervene at this particular stage in the proceedings. Once the court decides it is an appropriate case for them to do so, they turn to the standing issue.