CREW v. Trump and the Emoluments Clauses

The first formal Emoluments Clause lawsuit was filed today in federal district court in Manhattan.  The suit was brought by the group Citizens for Responsibility and Ethics in Washington (CREW), and it sets forth a detailed list of the President’s business dealings that, CREW claims, now represent violations of the Constitution.  I would note that the lawsuit alleges violations of both the Foreign Emoluments Clause (Article I, section 9) and the less-noticed Domestic Emoluments Clause (Article II, section 1), which forbids the President from receiving any emolument, other than his compensation, from the United States or from any State.  The complaint in CREW v. Trump is here.

The President has said that the suit lacks merit (Politico story here).  But before getting to the merits, there are two threshold problems with the suit.  The first and most obvious problem is the question of whether CREW has Article III standing.  As the complaint makes clear, CREW has an argument for standing.  But Josh Blackman, among others, offers a strong counterargument (Blackman’s post, embedded in the Politico piece, is here).  Even if CREW lacks standing, however, one wonders whether someone with a better claim to standing will move forward with a suit of his or her own.

The second threshold issue is whether the President is someone who holds an “office of Profit or Trust” for purposes of the Foreign Emoluments Clause.  There is an ongoing debate among constitutional scholars as to whether the President is covered by that provision.  Michael Stern has a good description of the debate here at Point of Order; Will Baude summarizes his views at VC here.  Of course, there is no doubt that the President is covered by the Domestic Emoluments Clause.

I would note that the suit filed today is not being filed by crackpots.  There are serious – indeed, mighty – names in the legal profession attached to this case.  Even if this particular suit does not survive, another suit may well be forthcoming.

 

 

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