By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
So sorry to report, resisters! There has been much sound and fury following the to allow a case against Trump to proceed for an alleged violation of the United States Constitution’s emoluments clause, by his continued ownership of the Trump International Hotel in Washington, D.C.
As much as resisters might like to see a way back machine– that would see Trump deposed, and another president installed in his place– alas, last week’s decision allowing an emoluments case to proceed won’t provide the relief you’re looking for.
Nor is the lawsuit– in the unlikely event it proceeds to an anti-Trump conclusion that is sustained on appeal– going to amount to much in legal terms.
If, however, the Democrats win the House in 2018, this case could assume greater political significance.
What is the Emoluments Clause?
I have written about the U.S. Constitution’s Emoluments clause before, so I refer interested readers to these posts and will not recap that discussion here (see US Constitution’s Emoluments Clause: a Nothingburger for Trump ; Law Profs Sue Trump, Alleging Violation of the Emoluments Clause; Senate Democrats Discuss Doubling Down on Losing Strategy of Suing Trump on Emoluments; and Party On! Congressional Democrats Pile On to Another Bogus Emoluments Clause Lawsuit).
Article 1, Section 9 of that document states that “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.”
This clause, on its face, appears to present problems for Trump, given his extensive business empire, which he has not divested himself of during his presidency. One part of that empire is his ownership of the Trump International Hotel in Washington, D.C., which is the focus of the lawsuit discussed here.
Yet the main obstacle, as I noted in that Nothingburger post, remains:
Now, at this point, I should bring up a rather elementary point. Just because something’s unconstitutional, doesn’t mean that any such unconstitutional activity will necessarily be prevented, precluded, or punished.
In the interests of keeping this post short, I won’t repeat the arguments I made there here. But I note that formidable obstacles stand in the way of an expansive interpretation of the emoluments clause that would restrict Trump activities (especially given the membership of the current Supreme Court).
I see no reason to back off on that initial assessment, as to the possible legal consequences of this decision. (The political issues are another matter, and I discuss them further below).
The Recent Federal District Court Decision
This case has survived standard preliminary jurisdictional motions– standing, failure to state a claim– that lead cases to be dismissed before they reach consideration of the merits.
What happens next?
The next phase is discovery– where parties to a lawsuit must produce documents requested by the other side. Now, non-lawyers believe this phase to be all-encompassing and without limitation. But the release of documents in discovery is circumscribed by procedural rules, relevancy standards, and allegations in the pleadings.
Altough many press accounts, such as this one, in The Globe and Mail, , blithely assert Trump may have to disclose his tax returns as this action proceeds, I believe this suggestion is flat out wrong. As litigator Jim Moody, who was closely involved in the Clinton impeachment action says, “I can say with absolute certainty—there will be no tax returns discovered in this case. If only because tax returns don’t disclose the source of income as being a foreign government—which is the central issue in this case.”
The ultimate disposition of this case cannot be predicted. Yet assuming for the sake of argument, that Trump ultimately prevails, what are the legal consequences?
First, what remedies would be available to plaintiffs? Some of the more hysterical coverage, such as this CNN account, suggest:
…this case will effectively force him to choose between continued ownership of his businesses and his presidency. This might happen if a federal court orders the President to divest his ownership interests in his companies or to stop doing business with foreign governments.”
But if one looks at the latest district court decision, the remedy is explicitly limited to Trump’s ownership stake in the Trump International Hotel.
Second, the case is certain to be appealed. And if it is, an appeals court may very well overturn the lower court’s rulings on jurisdictional matters, especially that the plaintiffs had standing to bring this case. (Two other emoluments cases were dismissed in December, with the court concluding the plaintiffs lacked standing to sue; see this Politico account, .) If the appeal shakes out this way, the entire complaint would ultimately be dismissed.
So, at the end of the day, IF Trump ultimately loses, AND the judgement survives appeal, AND given the limited legal remedy that could be awarded, even in a worst case scenario, does this mean Trump would be out of the woods?
Just because this is not a huge legal deal at this point– press accounts notwithstanding– doesn’t mean that the case couldn’t prove to have huge political significance– particularly if Trump loses the lawsuit.
If the Democrats retake the House in November, it is likely they may decide to initiate an impeachment action against Trump. And if they do so, this case could be Article 1 in the articles of impeachment, alleging a constitutional claim: violation of the emoluments clause.
Compare the relative strength of this potential claim to the allegations of perjury in a civil case in the impeachment proceedings against Clinton.
If this scenario comes to pass, Democrats will argue that a constituional violation is much worse than perjury. I leave it to others to debate the relative wrongs alleged here.
The Bottom Line
I still don’t think this emoluments case represents serious potential legal jeopardy for Trump– and certainly doesn’t warrant the hysteria I’ve seen in press coverage. But its political significance looms larger. The degree of severity of that threat hinges on whether the Democrats win a House majority in the November election and decide to pursue impeachment proceedings against Trump.