Group That Tried to Sue Trump Over ‘Emoluments’ Clause Just Got Booted Out of Court

A federal judge recently dismissed the first of three lawsuits against President Donald Trump that claim it’s unconstitutional for a president to own and profit from a business while in office.

Judge George Daniels of the Southern District of New York authored the opinion, filed Dec. 21, giving a win to Trump. But more generally, the opinion defends the principle that people cannot sue politicians in order to settle political debates in court, instead of in the legislature or at the ballot box.

The watchdog group Citizens for Responsibility and Ethics in Washington sued Trump last January, claiming that his extensive business interests constitute ongoing violations of the Constitution’s foreign and domestic emoluments clauses.

Those provisions serve to keep certain federal officials from taking compensation from foreign state actors, Congress, or the states, in exchange for favorable official treatment.

The domestic emoluments clause (Art. II, § 1, cl. 7) explicitly refers to the president and his salary. But the foreign emoluments clause (Art. I, § 9, cl. 8) does not, and several legal scholars (particularly National University of Ireland Maynooth Law lecturer Seth Barrett Tillman) have persuasively argued that it does not even apply to the president, or reach fair market value transactions, such as an ambassador paying the going rate for a room at the Trump Hotel.

While the government conceded only “[f]or purposes of this motion” that the foreign emoluments clause binds the president, the court did not ultimately decide whether there was any merit to the plaintiffs’ novel and far-reaching legal theories.

Daniels, an appointee of President Bill Clinton, dismissed the lawsuit because the plaintiffs lacked standing—a constitutional requirement that a plaintiff demonstrate that whoever they are suing has caused them some actual, concrete injury that the court can remedy.

As many legal scholars and journalists have, Daniels rejected plaintiffs’ theory that they had standing to sue the president because their lawyers—ethics experts and law professors—have been “forced” (although their activities have been entirely voluntary) to spend time and resources investigating Trump’s business interests, rather than devoting time to other pursuits.

They sought a declaration by the court that Trump’s business profits are unconstitutional, along with an order for him to divest himself entirely from his business interests.

Had the lawsuit proceeded, the district court would have invited future lawsuits filed merely to recover the costs of litigation that was filed because of political disagreements.

As Daniels wrote, “Under [the plaintiffs’] unbounded definition of standing, for example, a news organization could sue the president by alleging that one or more of his statements forced it to divert resources away from a different story it might have pursued. Surely, something more is required.”

Perhaps recognizing the weakness of its own standing claim, Citizens for Responsibility and Ethics in Washington had teamed up with hospitality and restaurant workers in New York and Washington, D.C., who claimed that they could sue the president because it is unconstitutional for them to have to compete with his various restaurants and hotels, which allegedly were being patronized by people seeking to curry favor with Trump.

Daniels described that claim as “wholly speculative” and unlikely to be resolved by any court order. People may visit Trump’s hotels and restaurants for any number of reasons, the judge wrote, “including service, quality, location, price, and other factors related to individual preference.”

He continued, “[T]here is no remedy this court can fashion to level the playing field for plaintiffs as it relates to overall competition.”

But even if there were, Daniels wrote, it is for Congress, and not the court, to consent or not to the president’s business arrangements.

In Baker v. Carr (1962), the Supreme Court ruled that, although the plaintiff in that case had presented a justiciable issue, courts may be barred from hearing cases that present a political question.

The court’s six-factor analysis asked in part whether the text of the Constitution commits the issue in question to another branch of government, and whether another branch of government must first reach some discrete policy determination before a court can resolve the issue.

The foreign emoluments clause provides that:

… no Person holding any Office of Profit or Trust under [the United States], 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.

Daniels found that because the text gives Congress the power to consent to a federal official’s receipt of “any present” or “emolument” from any “foreign state,” the issue is “committed exclusively to Congress … .”

“If Congress determines that an infringement has occurred,” he continued, “it is up to Congress to decide whether to challenge or acquiesce to [Trump’s] conduct.”

The question now is, will Congress take up the emoluments issue?

It doesn’t have to. After all, by receiving profits from domestic and foreign business interests, Trump is merely following well-established precedent set by previous presidents, from George Washington and Thomas Jefferson selling farm goods abroad to Barack Obama and John F. Kennedy selling their books around the world.

Still, plaintiffs’ lawyers have said that they will appeal the December ruling.

And the two other emoluments lawsuits against Trump present slightly different facts in different courts, so a different outcome is, at least theoretically, possible, although unlikely.

Last June, two state-level attorneys general—Brian E. Frosh, D-Md., and Karl A. Racine, D-D.C.—sued the president in the U.S. District Court for the District of Maryland. Two days later, nearly 200 Democratic representatives and senators sued the president in the U.S. District Court for the District of Columbia.

Andy Grewal, a University of Iowa College of Law professor who has written extensively on the emoluments issues, has described the House and Senate Democrats’ lawsuit as “the absolute weakest,” stating that “disgruntled legislators cannot sue the president in this way.”

The attorneys general, however, raise several novel theories for why they should be able to sue the president, including an argument that, similar to the restaurant workers’ claim, it is unlawful for enterprises owned or funded by the state to have to compete with businesses that the president owns.

Even if a court decides that one or both of these parties has standing and agrees to hear the case, Daniels’ conclusion that Congress must act before a court can rule on the emoluments issues would apply.

Still, some in Congress have consistently attacked Trump’s extensive business interests since Sen. Elizabeth Warren, D-Mass., sought to make them grounds for impeachment after Trump’s election.

With nearly 200 Democratic members of Congress suing Trump and one unsuccessful attempt, initiated by Rep. Al Green, D-Texas, to impeach him, the issue is unlikely to go away anytime soon.

For now, Daniels has provided a well-reasoned opinion that should influence how the two other district courts view this effort to pull the courts and the Constitution into a political fight.

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The Rich Legacy Orrin Hatch Will Leave in the Senate

Washington, D.C. is filled to the brim with skilled politicians and bright people. What it has in short supply are people who possess those characteristics and who also are wonderful human beings.

Orrin Grant Hatch, the senior United States senator from Utah and president pro tempore of the Senate, is one of that very small number of people.

On Tuesday, he announced that he will retire from the Senate when his current term ends a year from now. When that happens, the Senate will lose one of its historic figures.

Hatch has a reputation for believing in the importance of our Constitution, including its limitations. That is no mean feat in modern-day politics.

People generally don’t care what the Constitution says. People want the federal government to make their lives not just secure, but easy, free from any obstacle that could interfere with their personal happiness.

The American public has come to demand that the government solve every problem that life throws their way, regardless of whether the federal government has the legal authority to do so.

“Who cares what the Constitution says? I’ve got a problem, and the federal government should fix it. Besides, every other member of Congress has promised to fix it. Constitution, smonstitution. Just fix the problem, legality be damned!”

The truth is different. No government can solve every problem and make life nothing but strawberries and cream. Any Congress that tried would only leave matters worse.

Like the Framers, Hatch knew that. And like the Framers, he feared the type of arrogant, omnipotent polity that we have come to take for granted.

Why? A government that tries to solve every problem won’t do everything well and will create more problems than it can solve. The Framers knew that 200-plus years ago, and Hatch has known that since he first assumed office in 1977.

Hatch had the good fortune to be in the Senate in 1981, when Ronald Reagan became president. In that position, Hatch was able to play the lead role in shepherding through the advice-and-consent process and onto the bench judges—like Robert Bork and Antonin Scalia—who made landmark changes to the proper methodology of constitutional analysis.

No longer was the text of the Constitution merely an opinion, a guide, or mere advice. No longer could a judge take or leave it when the text didn’t support the result that the judge wanted.

Hatch believed that the text was “law” in every sense that mattered. Though he did not serve on the Supreme Court, he helped Reagan and both Presidents Bush appoint judges who had the same view of constitutional law that he held.

Does that mean he does not realize the hardships that can befall people? Far from it.

Hatch wasn’t rich. His father was a metal lather. He grew up in a home without indoor plumbing. He had eight brothers and sisters—two did not survive infancy, and one died in combat in World War II.

He had his share of adversity, and no one who ever knew him could honestly say he was not moved by the suffering of others. He was—he just didn’t believe that public life should be just another version of The Oprah Winfree Show or Dr. Phil.

I will confess that I am prejudiced. I worked for Hatch in the 1990s when he was the chair of the Senate Judiciary Committee. I had the opportunity to know him in a way that only those people who worked closely with him could hope to learn.

Many staffers for other senators do not have the same experience that I did. But that is because Orrin Hatch is a special person.

I came away from that experience with three conclusions that have stayed with me to this day. America has been a better place because he has dedicated his life to public service; the Congress has been a better institution because he has been a part of it; and everyone who has had the privilege of working for him is a better person because we were able to know someone who is one of God’s greatest gifts to us all.

Come January 2019, Hatch will leave the Senate so that someone else can serve as a U.S. senator from Utah. When he does, he will leave big shoes to fill.

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Why the Supreme Court Shouldn’t Bow to Government Agencies

Many Americans would be surprised to learn that a series of Supreme Court decisions allow officials in administrative agencies—rather than judges—to have the final say in interpreting statutes and rules.

Administrative agencies touch on nearly every aspect of Americans’ daily lives—from highways to electricity to health, and often with limited supervision from the other branches of government. All three branches of government have acknowledged the problems posed by unaccountable government bureaucrats who perform legislative, executive, and judicial functions.

Congress has its Article I project to regain authority lawmakers have ceded to agencies over the decades, and President Trump is requiring agencies to cut two old regulations before enacting any new ones.

Now it’s time for the Supreme Court to fix the problem it created when it mandated deference to administrative agencies.

>>> Read more about “Doomed Deference Doctrines” in this new Heritage Legal Memorandum.

In that series of decisions, the Supreme Court turned on its head Marbury v. Madison’s declaration that it is “emphatically the province and duty of the judicial department to say what the law is.”

The high court held in Chevron v. National Resources Defense Council that when reviewing an administrative agency’s interpretation of laws it is charged with carrying out, judges should defer to the agency’s judgment if the law is not clear and the agency’s interpretation is reasonable.

Decisions in Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins require judges to defer to an agency’s interpretation of its own regulations unless that interpretation is plainly erroneous or inconsistent. Under National Cable & Telecommunications Association v. Brand X Internet Services, an agency’s interpretation of a statute can supersede a court’s interpretation, and City of Arlington v. FCC requires courts to defer to an agency’s jurisdictional determinations.

Taken together, these decisions stack the deck in favor of agencies. They require judges to “bow to the nation’s most powerful litigant, the government, for no reason other than it is the government,” as 3rd Circuit Judge Kent Jordan wrote in a concurring opinion earlier this year.

Several Supreme Court justices have expressed concerns about these deference doctrines and indicated their interest in chipping away at Seminole Rock and Auer, in particular.

Justice Clarence Thomas frequently has commented on the constitutional problem created by both Seminole Rock and Auer. In a 2015 concurring opinion, Thomas explained that “giving legal effect” to an agency’s interpretation of regulations “effects a transfer of the judicial power” to the agency.

In the same case, Justice Samuel Alito wrote that he would like to explore “the validity of Seminole Rock” and the “aggrandizement of the power of administrative agencies.”

Chief Justice John Roberts also indicated that he “await[s] a case in which the issue is properly raised and argued.” Though Roberts was more guarded in his views than some of his colleagues, he appears to be open to the possibility of revisiting—and potentially reversing—Seminole Rock and Auer.

Justice Neil Gorsuch wrote a powerful concurring opinion when he was an appeals court judge, arguing that the Chevron decision is “difficult to square with the Constitution.” Though the case addressed judges deferring to agency interpretation of statutes, his criticisms apply with equal force to judges deferring to agency interpretation of regulations.

The Supreme Court justices won’t have to look far to find such a case. A petition currently pending before them squarely presents the opportunity to review Seminole Rock and Auer.

In Garco Construction Inc. v. Secretary of the Army, a construction company that had a contract with the U.S. Army Corps of Engineers to build Air Force housing in Montana is seeking to recoup extra costs it incurred due to the Corps’ contradictory interpretations of an applicable regulation. The company lost in the lower courts (with the appeals court deferring to the government’s interpretation of the regulation) and asked the Supreme Court to take up the case.

The justices will have a chance to review and discuss this petition on Friday, Jan. 5, their first conference of 2018.

With any luck, the court will agree to hear the Garco case and heed the words of the late Justice Antonin Scalia, who said a government agency “is free to interpret its own regulations,” but “courts will decide—with no deference to the agency—whether that interpretation is correct.”

The rationale for Seminole Rock and other deference doctrines is crumbling. It’s time for the Supreme Court to take back its authority to say what the law is.

>>> Listen to “SCOTUS 101”: Elizabeth Slattery and Tiffany Bates bring you up to speed on their Supreme Court podcast.

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The State Government Agency That Spied on Citizens

A new report on a government spying operation conducted by partisan bureaucrats should outrage and scare Americans everywhere.  It shows what can happen when, as the report says, partisans “weaponize” a government agency and use its powers to advance “political goals.”

Americans already have seen that when federal bureaucrats such as Lois Lerner or Samantha Power do that with the fearsome power of the IRS and our intelligence agencies, we face a threat to our liberty and the democratic process that is unparalleled in our history.

The 88-page report by Wisconsin Attorney General Brad Schimel details the notorious “John Doe” investigations that went after almost every conservative, nonprofit organization in Wisconsin (the state chapter of Club for Growth among them) for supposed violations of campaign finance laws.

Except that there were not any actual violations of the law, according to the Wisconsin Supreme Court.  The court shut down the prosecutions in 2015, calling the legal theory under which the prosecutors were pursuing the case “unsupported in either reason or law.”

The state’s highest court used the word “amazing” in describing the “breadth” of documents seized by prosecutors through numerous, wide-ranging subpoenas and search warrants.  This included “virtually every document possessed by the [targets] relating to every aspect of their lives, both personal and professional, over a five-year span.”

The report from Schimel, a Republican, has an unbelievable list of 218 subpoenas and search warrants issued in the investigation–and this is only a “partial” list.

Prosecutors treated conservative organizations as if they were dangerous drug cartels or mob operations. As the Wisconsin Supreme Court said, they executed search warrants against the personal homes and families of the leaders of these nonprofits in “pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes.”

Here is the meritless theory behind the investigations: Any support for issues important to Gov. Scott Walker, such as the bill reducing union power over state government employees, was illegal “coordination.”

As the state Supreme Court said, however, our democracy is supposed to assure the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Instead, the prosecutors’ theories “would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.”

Meet John Doe

These investigations tried to criminalize political speech and political activity protected by the First Amendment.

The John Doe harassment was conducted by the state’s now-defunct Government Accountability Board–the agency responsible for elections and ethics matters–and local prosecutors, led by unrepentant Milwaukee County District Attorney John Chisolm.

As this writer previously reported, the motive of Chisolm, a Democrat, was apparently very personal: His wife was a steward for the teachers union at a local high school and was upset over the union bill sponsored by Walker, a Republican.

The accountability board, known as GAB, was broken up into two separate agencies by the Wisconsin legislature after this debacle, and its former longtime director, Kevin Kennedy, the chief miscreant behind this abusive behavior, retired. Kennedy was part of the state’s elections bureaucracy for nearly 40 years.

Until this report, we only knew about two John Doe investigations.  Amazingly enough, however, Schimel’s investigators discovered a third and secret case, not revealed by bureaucrats, when they searched the former offices of the accountability board.

What Schimel labeled as “John Doe III” went even further that the John Doe I and John Doe II investigations.  According to his report, it “collected hundreds of thousands of private emails from dozens of Wisconsin Republicans (and at least two national conservative leaders, Ed Gillespie and Leonard Leo).” Gillespie, a Republican, just lost the governor’s race in Virginia; Leo is executive vice president of the Federalist Society, the conservative legal group.

The John Doe III investigation gathered over 500,000 personal emails, which the report says were found in “unsecured boxes” in the basement of the board’s former offices. Thousands of private emails from Wisconsin Republicans also were found in several folders on computer servers marked “Opposition Research,” the report says.

In other words, the state agency that was supposed to be the nonpartisan regulator of elections and ethics in Wisconsin was staffed by bureaucrats who labeled Republican legislators as the “opposition” and saw nothing wrong with using the legal process to secretly obtain their personal email communications.

Getting Personal

How personal were these emails, and how far removed were they from having anything to do with elections, campaigning, or fundraising?

Schimel details some of the emails his investigators found on pages 67 and 68 of his report.  They include over 1,000 emails among members of a private Bible study group that met at a church in Middleton, Wisconsin; an email between parents discussing a daughter’s need for an OB-GYN; an email about prescription medications; and “dozens of emails sent to, received from, or regarding radio talk show hosts Mark Belling, Vicki McKenna, and Charlie Sykes.”

That means that emails from this writer, a guest numerous times on McKenna’s radio show, very well may be in this collection.  A leading conservative voice in Wisconsin, McKenna went after the Government Accountability Board and its abusive tactics in the John Doe investigations.

Schimel also found that the John Doe investigators “obtained, categorized, and maintained over 150 personal emails between state Sen. Leah Vukmir and her daughter, including emails containing private medical information and other highly personal information.”

These emails were found in one of the folders marked as “Opposition Research.” Vukmir plans to challenge U.S. Senator Tammy Baldwin, a Democrat, next year.

Leaks to the press by individuals involved in the John Doe investigations sparked Schimel’s probe.

When the courts ruled against the prosecutors, they issued orders that the prosecutors and bureaucrats no longer could review, examine, or access any of the documents they had seized. The Wisconsin Supreme Court later ordered all of the information destroyed and all seized property returned to its owners.

The Leak

Despite those orders, the London-based Guardian newspaper published an article in 2016 linking to 1,500 pages of documents under seal from the John Doe investigations. The leak occurred just 11 days before the U.S. Supreme Court was set to consider the prosecutors’ petition for it to overturn the Wisconsin Supreme Court’s decision ending the prosecution.

Schimel’s extensive investigation concluded that the leak, a criminal violation of the law, came from inside the Government Accountability Board.  From the particular documents leaked and the timing, it was clear to the state attorney general that the motivation was to attempt to influence the U.S. Supreme Court’s decision. The high court, though, ultimately refused to take up the case.

Schimel notes that “only someone with an intimate knowledge of the case, a knowledge of campaign finance law, and familiarity with the leaked documents would know which documents to leak that would respond directly” to issues raised in the petition seeking review by the U.S. Supreme Court.

Schimel also was able to determine the leak did not come from the Wisconsin courts or any of the district attorneys. The source was the accountability board, but that agency so mismanaged–through incompetence or intentional conduct–the handling of all of the documents in an unsecured, unmonitored setting that Schimel could not determine the leaker’s identity with the amount of proof required to win a criminal conviction.

The evidence, however, seems to point to Shane Falk, a former attorney at the accountability board. In his report, Schimel recommends action against a long list of individuals, including referring Falk to the Wisconsin Office of Lawyer Regulation, which oversees the licensing of lawyers and disciplines those who violate ethics rules.

Schimel also recommends initiation of contempt proceedings against nine individuals for violating various court orders issued by the Wisconsin Supreme Court and the lower courts, including for leaving “hundreds of thousands of confidential documents” in the basement of the former board offices “in violation of a Supreme Court order.”

Among the nine are employees, lawyers, and investigators of both the Government Accountability Board and the Milwaukee District Attorney’s Office, as well as the special prosecutor hired to help run the case—Frances Schmitz, a former U.S. Justice Department lawyer.

Prejudging the Evidence

Kennedy, the former head of the accountability board, also is on this list. To its great shame, the National Association of State Election Directors last year gave Kennedy an award despite all of the evidence of his wrongdoing and misbehavior in the John Doe investigations. The fact that Kennedy now is on the board of the U.S. Vote Foundation, a nonprofit voting rights organization, tells you everything you need to know about that entity.

Here is the bottom line, according to Wisconsin’s attorney general, after his review of the evidence in the case, including emails exchanged between prosecutors and Government Accountability Board lawyers:

GAB attorneys had prejudged the guilt of Governor Walker, Wisconsin Republicans, and related organizations that they were investigating and this dramatically influenced their ability to give competent legal advice.

GAB attorneys did not act in a detached and professional manner … they were on a mission to bring down the Walker campaign and the governor himself. … Because the attorneys for GAB (none of whom were experienced criminal prosecutors) prejudged the evidence and what it meant, they had difficulty accepting that their interpretation of the law was wrong.

The Government Accountability Board’s attorneys refused to accept the legitimacy of court rulings against them, too, labeling the rulings as a “bad joke” and “pathetic” and indulging in conspiracy paranoia.  One of the board’s lawyers, commenting on an adverse ruling, said: “I’m not a conspiracy theorist by nature, but something does not smell right here.”

In his report, Schimel writes that the

words and actions by individuals supposedly part of a ‘non-partisan’ governmental body demonstrate … that some or all of these individuals did not maintain the kind of objectivity that is expected of officials legitimately investigating potential civil campaign law violations.  Indeed, it is to the Legislature’s credit that it disbanded GAB following this sordid tale.

This “sordid tale” of government spying on private individuals is a stain on Wisconsin’s reputation.  It should serve as a warning to the public about the dangers of out-of-control, unaccountable government bureaucrats who abuse their power and threaten Americans’ freedom to participate in the political process.

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