emoluments

One of the litany of legal cases involving President Trump was kicked Wednesday: this one related to the  accusation that the president is personally profiting off the act of being president, violating the Emoluments Clause of the U.S. Constitution.

Not all of the ways Trump profits off the presidency are legally dubious. The millions of taxpayer dollars funneled into just Mar-a-Lago (Trump’s “Winter White House”) are entirely lawful. But the Constitution specifically states that no one holding public office in the United States can take money (emoluments) from foreign powers without the consent of Congress.

A case claiming that President Trump has, through his refusal to divest from his business empire and the relatively common practice of lobbyists — including foreign powers — staying at Trump-branded properties, violated the Emoluments Clause was kicked Wednesday for failing to meet the requirements to bring a lawsuit, known as “standing.”

“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,” reads the opinion authored by Judge Paul Niemeyer. According to NPR, the two other judges that agreed to dismiss the suit were appointed by Republican presidents.

While the concept of standing isn’t uniquely American, the American legal system sets the bar for proving standing remarkably high. A party has to prove they are injured to sue, and they must prove that the courts are able to redress that injury.

Importantly, this means what while the three-judge panel did dismiss the lawsuit brought by Maryland and the District of Columbia for lacking standing, it means that the Fourth Circuit Court of Appeals did not make a decision as to whether or not the profiteering of President Trump amounts to a violation of the Emoluments Clause. That could leave the door open for other parties seeking to challenge Trump’s businesses, including a case brought by members of Congress. It only raises the question of who is injured by a violation of the Emoluments Clause. Trump’s efforts to dismiss the Congressional lawsuit have been less effective.

Even so, Trump cheered the decision in a tweet. In an unusual move, so did the Justice Department.

“The court correctly determined that the plaintiffs improperly asked the courts to exceed their constitutional role by reviewing the President’s compliance with the Emoluments Clauses,” said a Justice Department spokesperson.

This is an unusual tone for the Justice Department, which is charged with defending the law and interests of the United States and is not charged to act as the personal attorneys of the President — as cheering Wednesday’s decision seems more in line with. This is, however, reflective of Attorney General Bill Barr’s oversight of the Department, which has pushed it to more aggressively defend President Trump.

 

Katelyn Kivel is a contributing editor and senior legal reporter for Grit Post in Kalamazoo, Michigan. Follow her on Twitter @KatelynKivel.

 

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