Wednesday, December 27, 2017

District Court Tries Too Hard To Duck Emoluments Clause Case

by Michael Dorf

Last week Federal District Judge George B. Daniels of the SDNY dismissed the lawsuit pending in his court against President Trump alleging violations of the (foreign and domestic) Emoluments Clauses on multiple procedural grounds. In under 30 double-spaced pages, Judge Daniels concluded that: the private plaintiffs who run businesses that compete with Trump's businesses lack Article III standing because their injuries are too speculative; they also lack Article III standing because their claims are not redressable; they lack prudential standing because their injuries do not fall within the zone of interest protected by the Emoluments Clauses; the institutional plaintiff CREW (Citizens for Responsibility and Ethics in Washington) lacks Article III standing; the case presents a non-justiciable political question; and the lawsuit is not ripe.

Wow! That's a lot of flaws. How could the plaintiffs' cast of all-star lawyers have filed such a weak case?

The short answer is they didn't. I argued back in January that the case for Article III standing by CREW under existing Supreme Court and especially Second Circuit precedent is pretty strong. I argued in April that the addition of the competitor plaintiffs should have made the argument for standing "bulletproof." Was I wrong?

So thought some skeptics, who took to Twitter last week and retweeted the tweet by Take Care promoting my April essay, thereby implicitly criticizing the "bulletproof" characterization. Fair enough, I suppose, but I wrote in both my January blog post and the April Take Care essay that I thought it quite possible that the Supreme Court would overrule or narrow out of existence the key decision upon which CREW relied for standing. After all, the majority opinion in that case was authored by Justice Brennan, and given the ideologically rightward drift of the SCOTUS over the last 35 years, there was and remains a worrying possibility of a de facto or de jure overruling should the case end up before the justices.

What I did not expect was that a federal district judge would simply fail to apply the law that currently binds him. Yet that's more or less what Judge Daniels did. His opinion rejecting jurisdiction may ultimately be upheld by higher courts that either fail to follow or expressly overrule existing precedent.

So in a sense the skeptics are right, but only because a bulletproof vest provides no protection against a dirty bomb.

An excellent essay on TakeCare by Leah Litman and Daniel Hemel catalogues the most egregious errors that Judge Daniels managed to pack into his terse opinion. My two favorites are what Litman and Hemel label "(1) The Mysterious Disappearance of Competitor Standing Precedents," and "(4) Congress Is Not a Potted Plant—Even When It Acts Like One." In point (1), they note how Judge Daniels rejects the competitor standing claim by ignoring the Supreme Court's competitor standing opinions. By "ignoring," I don't mean that he mischaracterizes those cases; I mean he doesn't discuss them, relying instead on other, less relevant cases.

In point (4), Litman and Hemel point to a glaring stare-you-in-the-face, didn't-his-law-clerks-look-this-over-before-sending-it-out-the-door? error. Judge Daniels says that the Emoluments lawsuit presents a non-justiciable political question, because the Constitution commits to Congress the determination whether to approve of an otherwise-forbidden Emolument. That conclusion is wrong on its own terms for a reason I'll address momentarily, but even if it were true, it would not do the work it needs to do. As Litman and Hemel note, the Constitution forbids the receipt of foreign and domestic Emoluments. Congress may authorize the receipt of otherwise-forbidden foreign Emoluments but not domestic ones. So even if Judge Daniels were exactly right about the commitment of the issue to Congress, that would only dispose of half the case.

Meanwhile, however, the political question analysis is just plain illogical on its own terms, which probably explains why even the none-too-bashful President Trump's lawyers did not directly argue that the case presents a non-justiciable political question based on a commitment to Congress. Illogical why? Because the text of the Constitution does not commit to Congress the power to decide whether to ban foreign Emoluments. The Constitution clearly bans them, committing to Congress the power to lift that ban.

Saying that the courts have no power to adjudicate foreign Emoluments Clause violations because Congress could authorize otherwise forbidden Emoluments is like saying courts have no power to adjudicate copyright claims because Congress could repeal the copyright law (and thus authorize otherwise forbidden copying).

The district court opinion in CREW contains so many errors of law and basic logic that one suspects that something other than ordinary adjudication must be going on. As I read the opinion, Judge Daniels is more or less screaming at the top of his lungs I DON'T WANT TO TOUCH THIS SCORCHINGLY HOT POTATO, AND I'M GOING TO GIVE YOU SO MANY REASONS WHY I CAN'T TOUCH THE POTATO THAT YOU'LL GO AWAY--REGARDLESS OF WHETHER ANY OF THE REASONS I PROVIDE IS REALLY ANY GOOD.

I can understand that sentiment.  A lawsuit against even a normal president would lead a federal district judge to want to proceed cautiously and, if possible, to exercise what Alexander Bickel famously called the "passive virtues" epitomized by various doctrines that allow courts to avoid the merits of contentious questions.

And there are special reasons why a judge would want to be even more cautious with a lawsuit against this president. Nobody wants to be called a "so-called judge" or have his impartiality questioned based on his ancestry, or be dismissed as a "judge sitting on an island," whether that island is O'ahu or Manhattan.

But there are even stronger special reasons to hold this president to account. With normal presidents, one can depend on informal norms to do some work.  Normal presidential candidates release their tax returns. Normal presidents respect judicial independence and the free press, even as they sometimes think they are treated unfairly. In recent years, former presidents have used their post-presidency to earn unseemly sums, but they at least had the decency not to treat the presidency as a money-making opportunity while in the White House.

If there were any indication at all that Congress was willing to stand up to President Trump, then maybe, just maybe, one could justify an extra-legal decision to leave it to Congress to rein him in. But because that clearly is not about to happen, the job falls to the courts to enforce the letter of the law against a president who has no concern for its spirit.


Unknown said...

Yes: Michael Dorf does indeed appear to be appropriately outraged here (insofar as I/we currently understand this case, that is, based on these writings of Dorf and others). Anytime a "federal district judge would simply fail [actually, 'intentionally refuse'] to apply the law that currently binds him," with multiple well-documented "egregious errors" (as Dorf and the others say, seemingly correctly), such outrage is appropriate.

But the "outrage" is more than "appropriate": it's prosecutable. No judge could possibly be "innocently/inadvertently" that stupid/ignorant. So, the judge's behavior is actually in bad faith. I.e., the judge is knowingly committing: (i) Judicial Misconduct; (ii) Obstruction of Justice (which is criminal conduct. Both of which are further prosecutable (28 USC §332(d)(1),351–364; 18 USC §1519, 18 USC §1503,1505), BY ANYONE -- above and beyond the standard appellate route (which is available to LITIGANTS ONLY). (I'm ignoring 42 USC §1983, which is certainly dead-on-arrival)

So, my question is: Why don't aggrieved people (Dorf & others) follow-up (file for Judicial Misconduct and criminal conduct)? Both in this case, and in equally obviously outrageous cases? Doesn't it seem that the whole "serious" legal community (judges, attorneys, professors, etc.) should/must be doing exactly this (unless they're really "non-serious")?

That's what I've done, as well-documented on "Smoking Gun" there). Which case is, BTW FAR MORE EGREGIOUS than the Emoluments case discussed here (because it involves total abrogation of the whole/entire civil action process). Why don't the(/you!) "serious" legal folks do the same?

Unknown said...

Pardon the typo (or website software inadequacy). In my final paragraph, the website http://JudicialMisconduct.US was intended to be cited, and its Smoking Gun at http://JudicialMisconduct.US/CaseStudies/WETvIBM#smokinggun.

Shag from Brookline said...

I haven't read Judge Daniels' decision but based upon news reports, commentary, etc, Marbury v. Madison came to mind, in the sense that much of the decision just might be dicta, as I focused on this closing from Mike's first paragraph:

" ... the case presents a non-justiciable political question; and the lawsuit is not ripe."

In fact the stench of the decision suggests the lawsuit is overripe. Dismissal relieves Judge Daniels of the burdens of a time consuming trial, tossing the lawsuit "upstairs." Early in my practice here in MA (late 1950s), I was in Suffolk Probate Court awaiting a hearing and on the matter then before the court, the Probate Judge ruled against one of the parties, whose attorney pointed to MA law that strongly suggested the ruling was erroneous, to which the Judge responded, in effect, "I'm aware of your position. You can take this 'upstairs' [SJC]. Those boys have plenty of time on their hands to listen to you."

And it seems clear this Congress will not rain on, rein in or reign over President Trump's parade of emoluments horrors. The wheels of the judiciary can take years to fully engage between now and 2020. I'm reminded of an old Pepsodent radio commercial jingle modified to reflect this: "You'll wonder where the emoluments went when Trump's no longer President." Perhaps the best outcome may be Chapter 11 for Trump Enterprises.

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Fred Raymond said...

OK so what I get from this is that the Legislative and now the Judicial branches are both intimidated. DT can continue to do as he pleases without consequence.

Shag from Brookline said...

With GOP control of both houses of Congress, I don't think it's intimidated. I'm not sure Democrats in Congress can force consideration of consent for foreign emoluments. The situation may change in one or both houses of Congress with the 2018 midterms. I assume the DOJ is intimidated, however. As to the Judiciary, it can move too slowly. But it's too early to say the Judiciary is intimidated by the actions of a single trial Judge.

Unknown said...

"Intimidation" isn't really the point at all. And, indeed, political/partisanship of the particular case in question isn't the point at all. "Judicial Misconduct," as opposed to the Rule of Law, is the real point.

The federal judge in question (Daniels) has a lifetime appointment, is an Obama appointee, is in a district (SDNY) which is as unintimidatable as I can imagine. Nothing intimidating about any of that. Rather, Daniels is just lazy (, which is consistent with Dorf's theory (doesn't want to touch it). But, even laziness doesn't reach the "outrage" Dorf feels.

His outrage comes from Judicial Misconduct. Admittedly I have to bone-up more on the details of this case some more, but the indications are that J.M. is indeed present, in which case I'll consider writing it up as a Case Study on my website, http://JudicialMisconduct.US.

But, to repeat: The biggest outrage here is that THE ENTIRE LEGAL ESTABLISHMENT (though not necessarily each single individual lawyer) appears to be happy working in an environment of judges screwing over the citizenry, with exactly this sort of J.M. fuckery, and worse. Else, they'd pursue/prosecute it -- especially by complaining, in unison, loudly/directly, to their contacts in the Mass Media, and to our elected officials (Congress).

I've tried doing that (certainly I have the perfect test/index case for it), but I don't have a big enough voice (that is, the media doesn't understand what Summary Judgment is supposed to mean). Only the Legal Establishment's coordinated loud voices can/will be heard by the media. They'd love to fan the flames of J.M., in this day-and-age of Weinstein-and-Trump-like previously-unheard-of scandal/mania. Instead, the Legal Establishment prefers to aid-and-abet the evil-doing judiciary, to the detriment of American constitutionalism/law. WHY IS THAT?? THAT'S THE REAL OUTRAGE.

Asher Steinberg said...

This comment thread is such a tire fire that I doubt anyone will make it down this far, but if I may so, I don't think that you, or Daniel and Leah, really offer any argument as to why Daniels is wrong about competitor standing. He doesn't distinguish certain cases, true (it's not true that he cites no competitor standing cases), but why is he wrong that it's terribly speculative that Trump's continued interest in the hotels, as opposed to his mere familial association with the people running the hotel, or his pride in the hotels he formerly ran, is the reason that the plaintiffs face increased competition from Trump-branded hotels in the diplomatic space? I don't know if diplomatic interest in the Trump hotels would be dampened if, say, they were taken out of the trust and spun off into a separate company that Eric and Donald Jr. owned. It strikes me that the competitive advantages complained of in the cases Daniel and Leah fault Daniels for not citing are much clearer cases. It's clear to me that the Trump hotels are benefited by Trump's being the President, but much less clear that that benefit depends on his retaining a financial interest in the hotels.

Unknown said...

Excuse me, Arthur, but exactly what is the "tire fire" you allude to?

If that's a snide swipe at me, then perhaps you'd be so kind as to point out a flaw in my reasoning (about my case, http://JudicialMisconduct.US/CaseStudies/WETvIBM)? After all, PhD's in Math aren't usually given to errors of reasoning.

If it's a side-swipe about something else, please elucidate (and I'll withdraw the preceding paragraph).

Thank you. (And, yes, of course, I know about your blog.)

Shag from Brookline said...

I'm not sure of what Asher means by "tire fire" other than his efforts at hyperbole, but in his:

" ... but if I may so, I don't think that you, or Daniel and Leah, really offer any argument as to why Daniels is wrong about competitor standing."

the "you" is obviously Mike, and the others are "Leah Litman and Daniel Hemel" who wrote an earlier post at Take Care. By the way, Mike's post has made to Take Care, which also has a post by Prof. Shugarman [correct?], also critical of Judge Daniels' decision in Crew v. "Screw."

I'm still trying to digest Asher's suggested gifts of Trump's hotels to Eric and Don, Jr. and Asher's closing sentence. Remember all those file folders Trump's attorney displayed of TV separating Trump from Trump Enterprises that were reported to be empty?