The CREW “Emoluments” Suit and the Congress

January 24, 2017
posted by Bob Bauer

CREW and its distinguished legal team has produced a sharply turned-out complaint seeking a declaratory judgment and associated injunctive relief to redress their claim that President Trump is violating and will continue to violate the Emoluments Clause. It may face long odds: there is a challenging question of standing, and, spooked by the unprecedented nature of the intervention being requested, courts may be eager to seize on the standing issue as their way out. But if CREW is motivated to keep the pressure on the President, increasing the cost of his adoption of a controversial resolution of this issue, the complaint will have served at least that purpose.

There is some suggestion that CREW’s team may hope (and indeed have reason) to declare victory if awarded enough discovery to pry the President’s tax returns out of his hands. In announcing the suit, CREW’s Chair has stated that “President Trump is the first president in decades not to release his tax returns. Seventy five percent of Americans want to see the President’s tax returns and so do we. We will seek those in discovery in this case in order to establish the details of the emoluments clause violations here.” The open pursuit of that objective would not necessarily move a court in CREW’s direction. A court that is disinclined to jump into this battle may be similarly reluctant to be the chosen vehicle for setting the political conflict over the disclosure of the returns.

Then there is the other branch, Congress, which CREW repeatedly notes must consent under the Clause to the President’s acceptance of any “emolument.” This is an intriguing facet of the legal action. A court could give CREW what it is looking for: agreement that the President’s business interests constitute a channel for acceptance of emoluments, and forcing the Republican Congress to decide whether step in and, by consenting,” save Trump’s current plan for “separating” himself from those interests without surrendering them. Congress would then own that choice, and it would be a choice: sanction the business arrangements and the threat of conflicts, or sting the President by withholding its consent.

The majority in Congress would be unhappy with this possible outcome, but maybe less so with another. If a court dismisses the suit, and the dismissal is upheld on an appeal should one be filed, the Republicans can and surely will claim–as will the White House–that the President’s position has been vindicated. That would not necessarily be true, of course, if the court resolves the case against CREW on standing. Or even if the court, rejecting the CREW standing theory, hints in dicta at sympathy for the substantive constitutional claim. The Republican “message” would, predictably, be that the courts had settled the issue, and that Trump was in the clear. (And that would be still more the case if the court’s dicta express sympathy for defendant Trump’s position.)

In this case, Congressional Republicans may take themselves politically off the hook. They would have less reason to worry about this issue, regardless of press reporting–like the coverage to date on the President’s global business interests, on which CREW draws heavily in its complaint– that may raise further questions about revenues from foreign government sources to Mr. Trump’s benefit. They would not have to worry about “consent”, because there is no emolument, or so they may claim, that requires it. This may be their answer to oversight or new legislation.

And there is such legislation, more than one, pending. One would call on the President to establish a fully independent blind trust or some “equivalent measure,” in the absence of which the Congress would be on record by concurrent resolution that he was risking violations of the Emoluments Clause. Another would explicitly deny that Congress had consented to any arrangement other than divestment and would express its “sense…that compliance with the Clause is a matter of the greatest urgency and importance.” Now comes the court action, with implications for how the congressional leadership answers these challenges.

CREW doubtless considered all these possible outcomes, appreciating as lawyers do, especially when litigating hard cases like this, that all lawsuits come with risks. They might win a little (or with the release of returns, more than a little) with court-ordered discovery, or a lot with a favorable ruling on the merits, or they may lose and Congressional Republicans may be quick to use the case to put this issue behind them.

But, then again, as supporters of the CREW action would note, the President’s party has not shown interest in taking the issue on: a sort of consent-lite. The lawsuit will help determine whether this position will hold: it might force the Congress’ hand or give it cover.

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