If you’re in the mood for a good chuckle, try reading the first lawsuit filed against the new president since he was sworn in.
The man hasn’t even unpacked his collection of red silk ties… and already he stands accused of corruption while in office.
Predictably, the plaintiffs are a clique of law professors serving as “arm candy” for a liberal group called Citizens for Responsibility and Ethics in Washington (an oxymoron, to be sure). Their pleadings read like a dime novel. Or a comic book.
On the first page, we are warned of a “secret” and “grave threat”. The next sentence escalates it to a “creeping, insidious threat”. Get it? There’s a threat out there. Stephen King may write a book.
But if you can wade through the melodramatic style and tortured syntax, you’ll find the legal arguments oozing with the conceit of pseudo-intellectuals. In other words, they make little sense.
The plaintiffs claim President Donald Trump began violating the “emoluments clause” of the U.S. Constitution the moment he took office because the businesses that bear his name are surely receiving some money from foreign governments, even though he has relinquished management control and elected to donate foreign profits at Trump-owned hotels to the U.S. Treasury. Forget that the revenue derives directly from his businesses, not his high office.
The lawsuit is pure legal folly because the U.S. Supreme Court has repeatedly ruled that these kinds of circumstances do not violate the Constitutional emoluments prohibition. The plaintiffs, for all their academic prowess, manage to define emoluments incorrectly.
What The Hell Is An “Emolument”?
And that is precisely the question: what constitutes an “emolument”? Never heard of it?
I encourage you to read the excellent legal and historical analysis of Andy S. Grewal at the University of Iowa College of Law who published a recent study entitled, The Foreign Emoluments Clause And The Chief Executive. His review of the issues is smart, insightful and comprehensive.
But if you have neither the time nor inclination to wade through 43 pages and 187 annotations, here is the abridged version.
Article I, section 9, clause 8 of the Constitution states:
“…no Person holding any Office of Profit or Trust under (the United States) shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”.
The Framers were concerned that U.S. officials might be seduced by greed to use their office for personal profit, conferring benefits to foreign governments in a quid pro quo scheme for money. So they crafted the “emoluments clause” to prevent other countries from essentially bribing American officials, including the president. But our Founders did not define what is or is not an emolument.
In search of a definition, a basic and prominent legal source, "Black’s Law Dictionary," is useful. It defines the term emolument as, “Any advantage, profit, or gain received as a result of one’s holding of office”. The original Webster’s Dictionary defines it as, “profit arising from office”. The Oxford English Dictionary offers a near identical definition.
None of these interpretations apply to President Donald Trump nor the many businesses that pre-date his presidency. Any payments to his Trump Organization do not arise from his holding the office he just assumed days ago. To the contrary, any realized profit emanates from his businesses, not his presidency.
Moreover, the U.S. Supreme Court has visited this very subject not once, but three times. In each case, the high court has consistently adopted the same definition of emoluments. That is, ordinary business transactions are not emoluments. There must be a nexus between the payment and the office. An emolument arises “when a pecuniary profit is derived from a discharge of the duties of the office.” (Hoyt v. United States, 51 U.S. 109)
Only when a president uses his office to confer a benefit in exchange for foreign money is he in violation of the Constitution. President Trump has done no such thing. The plaintiffs accuse him of no such conduct.
What is astonishing is how the plaintiffs ignore history in the context of the Framers’ intent. The first five presidents were farmers and plantation owners who maintained their businesses while in office. Some of their crops, especially tobacco, were sold abroad to companies and foreign governments. These sales were never regarded, even by their political opponents, as emoluments because they were unrelated to the holding of office.
So, how they can these “learned” professors, in good conscience, sue the President for something which the Supreme Court has said is perfectly constitutional? Well, I tend to think that professors view the law through the prism of an alternative reality. Or their political beliefs corrupt their legal judgments.
Two of the plaintiff professors published a column shortly before the presidential election demanding that Trump release his tax returns. This lawsuit appears to be nothing more than a pretext to force him to do so. If true, this is egregious misconduct. The federal court system should never be used and abused for political purposes.
The Plaintiffs Have No “Standing” To Sue
In order to maintain a legitimate lawsuit in federal court, the plaintiffs must demonstrate they have or will sustain a direct harm that that the court can remedy or rectify. It is called “standing”. Being displeased with a president does not constitute standing to sue.
So how are the plaintiffs harmed? The simple and obvious answer is they are not. And their own, rather laughable arguments prove it.
Beginning on page 23 of their civil action, Citizens for Responsibility and Ethics in Washington asserts that it has been harmed because it “has received hundreds of requests from the media” about the emoluments clause and has been forced to “divert its time and resources from its public-education activities to respond to these questions”.
OK, you can laugh now. That sentence makes no sense. By taking the time to educate the public through the media, it has been unable to fulfill its public-education activities. A genius argument.
The plaintiffs also claim their attorneys have spent so much time researching the new president and exploring potential legal actions against him that their costs have increased. Really? Isn’t that their own fault? If they had bothered to read the Supreme Court decisions on the emoluments clause, they could have dispensed with the entire matter in a leisurely afternoon.
Frivolous = Sanctions & Contempt
This case is not just lacking any legal merit, it is manifestly absurd. Under Rule 11 of the Federal Rules of Civil Procedure, someone who brings a frivolous lawsuit can be sanctioned by the court, or even held in contempt.
In my experience, some law professors live in a land of make-believe. There is something about the seclusion of an ivory tower’s academic existence that twists and distorts reality.
Perhaps it is time a federal judge slap these profs with some meaningful sanctions. Maybe that will wake them up from their pedantic slumber.
And give them pause the next time they consider misusing our system of justice for purely political purposes.