4th Circuit to Maryland, DC: Stop wasting our time on Emoluments Clause lawsuits


To report merely that the Fourth Circuit dismissed this lawsuit is to be far too kind to the court it overruled and the plaintiffs in the case. In two separate decisions, the appellate court unanimously spiked claims of standing by Maryland and DC to sue Donald Trump over the Emoluments Clause, ridiculed their claims of injury, and issued a rare mandamus to the lower court to dismiss the entire mess with prejudice.

Other than that, how did they like the play?

A federal appeals court on Wednesday dismissed a case brought by the state of Maryland and the District of Columbia that argued President Donald Trump is violating the Constitution by accepting profits through foreign and domestic officials who stay at his Washington hotel.

The three-judge panel of the U.S. Court of Appeals for the 4th Circuit questioned whether the two state attorneys general were “appropriate” in their litigation.

“The District and Maryland’s interest in enforcing the Emoluments Clauses is so attenuated and abstract that their prosecution of this case readily provokes the question of whether this action against the President is an appropriate use of the courts, which were created to resolve real cases and controversies between the parties,” Judge Paul Niemeyer wrote in his opinion on behalf of the panel.

That’s hardly the worst of the scolding in the two opinions, both written by Niemeyer. In the more brief of the two, Niemeyer and the two judges rule that Trump has express individual immunity, a point the district court ignored when ordering discovery for the lawsuit. Furthermore, Niemeyer writes, there’s no distinguishable difference between individual and official immunity. This resolves a largely technical point, although it heaps some scorn on the district court for not dealing with the issue responsibly:

The district court addressed the President’s motions in piecemeal fashion. By an opinion and order dated March 28, 2018, it rejected the President’s challenge to the District and Maryland’s standing insofar as the claims were made in connection with the Trump International Hotel and its appurtenances in Washington, D.C. Then, by a separate opinion and order dated July 25, 2018, the court ruled on the meaning of the term “emolument” and concluded that the various benefits alleged in the complaint qualified as “emoluments” under the Emoluments Clauses. The court, however, deferred ruling on the President’s motion to dismiss the claims against him in his individual capacity, thus declining to address the President’s assertion of absolute immunity. The court also directed the parties to submit a discovery plan.

In response to the district court’s decision to defer ruling on his claim of immunity, the President asked the court to convene a conference, citing concerns about being subjected to discovery before the court had ruled on immunity. The court, however, did not respond to the President’s request but instead, on December 3, 2018, entered a “Scheduling Order Regarding Discovery” opening discovery against “Donald J. Trump in his official capacity as President of the United States of America.” …

The District and Maryland argue, however, that the district court’s December 3, 2018 order scheduling discovery related only to the official capacity claims, which had moved beyond the motion to dismiss stage, and that the order therefore did not subject the President to pretrial procedures with respect to the claims against him in his individual capacity. The difficulty with this argument, however, is that for purposes of this action, there is no meaningful distinction between discovery with respect to the claims against the President in his official capacity and discovery with respect to the claims against him in his individual capacity. This is largely due to the nature of the Emoluments Clauses, which, at least under the District and Maryland’s theory, prohibit certain private transactions by virtue of an official’s public office. Accordingly, any Emoluments Clause claim against the President under the District and Maryland’s theory, regardless of capacity, entails the same discovery into the President’s business dealings. Whether the claims in this case are asserted against the President in his individual or official capacities simply does not alter the scope or nature of discovery in any material way.

All of this is prelude to the larger issue of standing. The court unanimously concluded that neither state has any standing at all, and indeed they didn’t even have a coherent complaint:

With his petition for a writ of mandamus, the President requests that we direct the district court to certify for interlocutory appeal under 28 U.S.C. § 1292(b) its orders of March 28 and July 25, 2018, which the court refused to do. That request is indeed an extraordinary one, as petitions for writs of mandamus are rarely given, and the district court’s refusal to certify was an exercise of broad discretion. But, in the same vein, the District and Maryland’s suit is also an extraordinary one.

First, the suit is brought directly under the Constitution without a statutory cause of action, seeking to enforce the Emoluments Clauses which, by their terms, give no rights and provide no remedies. Second, the suit seeks an injunction directly against a sitting President, the Nation’s chief executive officer. Third, up until the series of suits recently brought against this President under the Emoluments Clauses, no court has ever entertained a claim to enforce them. Fourth, this and the similar suits now pending under the Emoluments Clauses raise novel and difficult constitutional questions, for which there is no precedent. Fifth, the District and Maryland have manifested substantial difficulty articulating how they are harmed by the President’s alleged receipts of emoluments and the nature of the relief that could redress any harm so conceived. Sixth, to allow such a suit to go forward in the district court without a resolution of the controlling issues by a court of appeals could result in an unnecessary intrusion into the duties and affairs of a sitting President. Accordingly, not only is this suit extraordinary, it also has national significance and is of special consequence. …

Moreover, the likelihood that an injunction barring the President from receiving money from the Hotel would not cause government officials to cease patronizing the Hotel demonstrates a lack of redressability, independently barring a finding of standing. This deficiency was remarkably manifested at oral argument when counsel for the District and Maryland, upon being questioned, was repeatedly unable to articulate the terms of the injunction that the District and Maryland were seeking to redress the alleged violations. When plaintiffs before a court are unable to specify the relief they seek, one must wonder why they came to the court for relief in the first place.

In terms of the actual damages being claimed, Niemeyer cites the 2017 decision in a similar lawsuit filed by the Citizens for Responsibility and Ethics in Washington (CREW), which got laughed out of court in 2017. In both cases, plaintiffs claimed that the Trump brand on hospitality businesses amounted to an unfair competitive advantage, thus forcing others to lose business. Niemeyer cites Judge George Daniels’ decision in dismissing that argument, while scolding the district court in this case for expressly rejecting it entirely as a mere difference of opinion:

The CREW court’s disagreement with the theory of competitor standing embraced by the district court is fundamental and obvious, and the district court’s suggestion to the contrary blinks reality.

Another fundamental problem highlighted by the court is that the Constitution does not explicitly define emoluments, nor does it define redress from them or even establish that redress is possible through civil lawsuits. Although Niemeyer does not state this directly, the overall thrust of the decision strongly suggests that only Congress has any authority to enforce those clauses. The nature of the Emoluments Clause does not lend itself to the kind of “concrete and particularized … injury in fact” that is required for judicial intervention. Instead, Niemeyer notes, this complaint mirrors Schlesinger in its claim of generalized interests, which are political rather than judicial in nature.

Even if the courts took up this issue with Trump, however, what would the court do to meet another threshold — that it could redress particularized damage through injunctive relief? Niemeyer shreds that point as well:

To begin, the District and Maryland’s theory of proprietary harm hinges on the conclusion that government customers are patronizing the Hotel because the Hotel distributes profits or dividends to the President, rather than due to any of the Hotel’s other characteristics. Such a conclusion, however, requires speculation into the subjective motives of independent actors who are not before the court, undermining a finding of causation. …

Indeed, there is a distinct possibility — which was completely ignored by the District and Maryland, as well as by the district court — that certain government officials might avoid patronizing the Hotel because of the President’s association with it. See United Transp. Union v. ICC, 891 F.2d 908, 914 (D.C. Cir. 1989) (rejecting standing where it was “wholly speculative” whether the challenged conduct would “harm rather than help” the plaintiffs). And, even if government officials were patronizing the Hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the President enjoined from receiving income from the Hotel. After all, the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family. In short, the link between government officials’ patronage of the Hotel and the Hotel’s payment of profits or dividends to the President himself is simply too attenuated.

Rather than take the chance on sending the case back for further review, Niemeyer and the panel granted the mandamus petition and ordered the case dismissed for good, with a parting shot at both plaintiffs and the district court judge:

The District and Maryland’s interest in enforcing the Emoluments Clauses is so attenuated and abstract that their prosecution of this case readily provokes the question of whether this action against the President is an appropriate use of the courts, which were created to resolve real cases and controversies between the parties. In any event, for the reasons given, we grant the President’s petition for a writ of mandamus and, taking jurisdiction under 28 U.S.C. § 1292(b), hold that the District and Maryland do not have Article III standing to pursue their claims against the President. Accordingly, we reverse the district court’s orders denying the President’s motion to dismiss filed in his official capacity, and, in light of our related decision in No. 18-2488, we remand with instructions that the court dismiss the District and Maryland’s complaint with prejudice.

Let’s hope that everyone else learns to take a hint. If not, the Supreme Court might decide to put an end to the issue in the next term — most likely by emphatically denying cert.

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