2017-06-12 – Today the District of Columbia teamed up with the State of Maryland to sue Donald Trump for violating the “Emoluments Clause” of the Constitution. Earlier this year, shortly after Trump took office, a group called Citizens for Responsibility and Ethics in Washington (CREW) filed a similar suit.
Both suits basically accused Trump of having a conflict of interest with the United States based on his business holdings. As you might guess, there are many hoops to jump through before you can get a judgment against the President of the United States for conflict of interest. In fact, it’s never been done.
But we’ve never had a president as brazen about pursuing his business interests while in office as Donald Trump.
These suits are based on clauses of the Constitution that have never been tested. I guess they will be tested now. The CREW lawsuit has a major weakness: the plaintiffs are mere citizens. American courts don’t care much if the government injures mere citizens. They say that citizens don’t have “standing” to compel the government or an official of the government to act in accordance with the law—at least not through the courts.
If you want your government to act in accordance with the law, your only recourse is to vote. You can’t sue.
The new suit is different because the plaintiffs are “sovereign.” (And you thought the people were sovereign!) These sovereign entities are now saying that they gave power to the federal government by ratifying the Constitution and that this act gives them the right to sue. It’s like they made a contract that is now being breached.
It’s a long shot.
And it’s likely to go to the Supreme Court. So don’t get your popcorn just yet. It’s going to be a long road before either of these lawsuits is decided. There will be motions and rulings and (hopefully) discovery and more motions and rulings and decisions and appeals before it reaches the Supremes.
But I was still interested in what these plaintiffs are asking for. What will they (and we) get if they win?
They are asking for two things, basically: (1) a declaration that Trump is violating the law and (2) an injunction telling him to stop.
Is that all?
Now I don’t think they would get anywhere asking the Court to disqualify Trump from the presidency. The Constitution prescribes impeachment for that. The Court would totally deny that. Asking for something like that would undermine the whole lawsuit. These plaintiffs were wise not to ask for anything like that.
But they could have asked for the money. That would get Trump’s attention.
What do I mean by asking for the money?
Well Trump is using his position as president to enrich himself—even though that is prohibited in the Constitution.
There is a concept in equity known as a constructive trust. When a court finds a person in unjustly enriched by abusing a position of trust, they declare a “constructive trust” as a way of taking the unjust profits from them.
Neither of these plaintiffs has asked for that. Should they? It would be amusing, at least.
For now, the main purpose of these lawsuits (if they are not dismissed) is discovery. If a court recognizes the claim as a valid claim, then it will have to authorize both the plaintiffs and the defendant to develop evidence to prove their claim. This means that Trump would have to produce documents about his business dealing.
If Congress won’t ask for Trump’s financial documents, including his tax returns, maybe a court will.
But like I said, don’t get your popcorn just yet.
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