Dorf on Law

by Michael Dorf (cross-posted on Take Care ) The last week saw important developments with respect to Donald Trump's ongoing confrontation with the Constitution's Foreign Emoluments Clause. First, the Department of Justice (DOJ) filed a motion to dismiss the lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW) and others against President Trump. The government argues in its supporting memorandum that the plaintiffs lack standing because they have not been injured and that even if they have been injured, they are not within the zone of interest protected by the Emoluments Clause. In prior essays, I have argued that under the existing precedents, CREW has standing and so do the additional plaintiffs alleging that Trump's violation of the Emoluments Clauses redirects business away from them or their employers and thus injures them. The government's arguments for dismissal do not persuade me otherwise. But even if the government's arg...

By Eric Segall The President of the United States owns a posh hotel in the shadow of the White House from which he derives foreign-government revenue. Along with income and benefits from many other domestic and international businesses, this revenue stream creates the very conflict of interest that the founding fathers wanted to prevent by writing into the Constitution that “no Person holding any Office of Profit or Trust … shall, without the Consent of the Congress, accept … any Emolument … from any King, Prince, or foreign State.” Members of both the House and the Senate have filed a lawsuit seeking to enforce this provision. These legislators allege that the President has violated their right, guaranteed in the text of the Constitution, to vote on and authorize the President’s acceptance of “emoluments.” They ask that the court require the President to obtain Congress’ consent before accepting benefits from foreign governments or divest himself of all interests in those b...

By Michael Dorf ( cross-posted  on Take Care ) Almost immediately after President Trump's inauguration, Citizens for Responsibility and Ethics in Washington ("CREW") filed a lawsuit against him alleging multiple violations of the Emoluments Clause occasioned by Trump's continuing to profit from his opaque business empire. The complaint alleged that CREW has standing because, as a government ethics watchdog agency, it would incur very substantial additional costs monitoring and otherwise responding to Trump's activities. Some commentators objected that such costs ought not to suffice as an "injury" sufficient to confer standing under the Constitution's Article III because, they said, if it did, then any self-appointed do-gooder could manufacture standing simply by asserting an interest in monitoring and responding to alleged wrongdoing. These commentators typically cited Clapper v. Amnesty Int'l USA for the proposition that CREW suffered f...

by Zachary Clopton The President, without the consent of Congress, accepts an emolument from a foreign state. What next? The answer is judicial intervention, say recent lawsuits from private citizens , government bodies , and members of Congress . The merits of their allegations have been—and continue to be—thoroughly ventilated by others. This post addresses two issues related to whether these cases are appropriately handled by the federal courts at all, i.e., justiciability.

The Foreign Emoluments Clause of Article I 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." In various articles (including this one ), Professor Seth Barrett Tillman has argued that the clause restricts only persons holding appointments to offices created by statute and thus doesn't apply to the presidency. To my mind--and in the consensus view of the academy--that counter-intuitive conclusion is too counter-intuitive to stand. The framers had, and we have, more, not less, reason to worry about foreigners purchasing influence over the president than over every lowly government official. Accordingly, although Professor Tillman's arguments cannot simply be dismissed, I shall proceed here on the widely accepted assumption that the Presidency is an "office" within t...

By Michael Dorf As many readers are no doubt aware from the substantial publicity the case has already received, (e.g., here ) a recent federal lawsuit against President Trump seeks declaratory and injunctive relief for the latter’s alleged violations of the Emoluments Clause. The dream team of lawyers representing the plaintiff includes legal scholars Erwin Chemerinsky, Zephyr Teachout, and Laurence Tribe, as well as Bush II and Obama senior ethics counsels Richard Painter and Norman Eisen (as well as other attorneys, including my former student Stuart McPhail). The substantive argument for an Emoluments Clause violation has been made in various fora already, including by Eisen, Painter, Tribe, and Joshua Matz in an article in The Atlantic, and by Eisen, Painter, and Tribe in a Brookings white paper. The public response of the Trump team thus far—that paying fair market value for a hotel room does not violate the Emoluments Clause—is woefully inadequate to address either t...

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 s...

By Eric Segall Last Wednesday, three federal judges appointed by Republican Presidents expressed great skepticism over a lawsuit brought by the State of Maryland and the District of Columbia alleging that President Trump is violating the Emoluments Clauses of the Constitution. The provision that deals with foreign countries (this post is limited to that clause) provides that " No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, 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." This constitutional limitation has never been interpreted by the Supreme Court. In addition to the lawsuit brought by Maryland and the District of Columbia, there are similar lawsuits filed by member of Congress (disclaimer I worked on a brief in that case), and by a citizens organization called CREW in the Southern Distr...

by Michael Dorf In prior essays I joined the chorus of people condemning Donald Trump's woefully inadequate efforts to ensure that his business interests do not interfere with his official duties as president. I first explained that in addition to the obvious problems created by Trump's conflicts of interests, the appearance and perhaps reality of corruption could spread corruption. I then explained how , notwithstanding the personal identification of the Trump brand with Trump himself, Trump could indeed sell his interests in his businesses and put the resulting proceeds in a genuine blind trust, but only if he is willing to forgo what I called the "corruption premium." Trump continues to provide evidence that he nonetheless intends to pocket the corruption premium Meanwhile,  a persuasive new paper by Norman Eisen, Richard Painter, and Laurence Tribe  concludes that Trump will be in violation of the Emoluments Clause from the moment he takes the oath of office....

by Michael C. Dorf On Thursday, I discussed the use of the pejorative "Democrat Party" in a complaint filed by lawyers working for Donald Trump (in his personal capacity) and various Trump companies. I worried that the practice has spread from the frothing right to what now passes for the mainstream right. My worry was well-founded. That very day, Deputy Attorney General Rod Rosenstein displayed his partisanship by using "Democrat" as an adjective--ironically enough in a phrase that purported to disavow partisanship ("There is not Republican justice and Democrat justice. There is only justice and injustice.") It's possible that Rosenstein did not realize that he was using a slur, but if so, that only shows that he moves in such highly partisan Republican circles that he routinely hears the slur rather than the proper name of the Democratic Party. For now, I want to double back to a question I bracketed last week: the merits of Trump's lawyer...

by Neil H. Buchanan What is a technicality?  In the echo chambers of political punditry, certain words and phrases gain favor, allowing writers not to think deeply about issues even as they sound familiar notes to project seriousness.  Lately, among those who are disappointed that the Senate did not reach the two-thirds threshold to formally convict Donald Trump in the impeachment trial, the unfortunate move is to describe Republicans' dodging of the issue as hiding behind a technicality.   Aaron Blake, a Washington Post reporter, wrote that "Trump was acquitted at his second impeachment trial largely — if not completely — on a technicality: the argument that the trial itself was unconstitutional."  Similarly, Michelle Goldberg, the progressive New York Times columnist, yesterday disparaged Minority Leader Mitch McConnell for relying on the "manufactured technicality ... that a former president is 'constitutionally not eligible for conviction.'"   ...

Between now and the end of the term, the Supreme Court will issue decisions concerning abortion, guns, administrative law, and Trump, Trump, and more Trump. (In addition to the high-profile cases, for example, today the Court hears oral argument in a case that tests whether the statute used to try January 6 defendants applies to their conduct.) My guess is that a lot of pain is coming our way as we head towards that great artificial deadline the justices created for themselves known as "June." As we are in a bit of a holding pattern with tornado-type turbulence surrounding us, I thought I'd provide a bit of, let's call it legal levity, as we wait for the Court to inflict pain on our people and our country. Here are ten fascinating facts about SCOTUS you might not know. 1.      MARBURY V. MADISON: THE POLITICAL TURNS PERSONAL AND THE PERSONAL TURNS  POLITICAL Most academics view much of Marbury v. Madison skeptically for many reasons, including that Chief Justice Jo...

By William Hausdorff The glimmers of hope from the most recent state and local elections in Virginia and elsewhere paradoxically made me aware of how thick is the cloud of gloom that had descended on many of us since the previous US national election.   This gloom that has made many of us question, for the first time, the very resilience of the US political democracy. In trying to cope with this, Masha Gessen drew on her previous life in a gloomy environment in an excellent essay: …a decade and a half in Putin’s Russia taught me something about living in an autocracy. I am familiar with the ways in which it numbs the mind and drains the spirit.  In contrast, I have recently been pondering the Dementors described by J.K. Rowling in her Harry Potter books : Dementors are among the foulest creatures that walk this earth. They infest the darkest, filthiest places, they glory in decay and despair, they drain peace, hope, and happiness out of the air aro...

By William Hausdorff and Eric Segall President Donald Trump (three words that in a sane world would be the dictionary example of an oxymoron) just completed his first 100 days in office. Social media writers have poured forth summaries, takes, and opinions about this surreal stretch of mismanagement and incompetence (with a new  Verdict essay by Mike Dorf focusing on legal incompetence). Rather than look backward, however, we felt it might be helpful to provide hints for how to survive (better) the next 100 days. We should note at the outset that this is no easy assignment.

by Michael C. Dorf After Nickelodeon revived the former Fox show Are You Smarter Than a Fifth Grader?  in February, it should not have come as a surprise when Comedy Central announced next week's scheduled premiere of its spinoff Are You Smarter Than Donald Trump? . The concept is straightforward. Host Steve Harvey will ask contestants questions to which Trump does not know the answer. I know what you're thinking: that hardly narrows things down. But as the promotional material makes clear, for a question to appear on Are You Smarter Than Donald Trump? ,   it's not enough that Trump certainly doesn't know the answer; he must have publicly espoused the wrong answer at some point. Excited prospective viewers have been wondering what questions will be asked. Will contestants need to know whether Nambia is a real (shithole) country? Will they be asked  how many Articles the Constitution contains ? The difference between counsel and council ? Where to buy the best co...

by Michael C. Dorf On Monday, US District Court Judge Amit Mehta issued a thorough and persuasive opinion rejecting the arguments by President Trump's personal lawyers for an order invalidating a congressional subpoena for financial records that was issued to an accounting firm that has worked for Trump and his businesses. The next stop for the litigation will be the US Court of Appeals for the DC Circuit and thence the Supreme Court. As I'll explain, Judge Mehta's opinion makes clear that the law clearly favors Congress (really the House) in this dispute. That does not guarantee that Trump will ultimately lose. However, Trump can only prevail in the SCOTUS if the conservative majority engage in hypocritical partisan hackery.

by Neil H. Buchanan No one who has been paying even a little bit of attention to Donald Trump could have been surprised by his abject failure of leadership after the violent white supremacist rallies in Charlottesville this past weekend. Trump's White House staff includes people who have built their careers by fomenting racist hatred, and Trump has enthusiastically embraced their themes and resentments.  He had no inclination to criticize a part of his base that he has actively courted. There has already been an outpouring of excellent commentary regarding Trump's contemptible evasions.  Jennifer Rubin, a conservative columnist for The Washington Post , posted a blizzard of insightful blog entries, including one in which she decried "Trump's moral idiocy."  (On the other hand, some nominally respectable right-wingers are now busily trying to create false equivalence between Trump and Barack Obama.) But by far the best responses thus far have come from th...

by Neil H. Buchanan One of the tried-and-true tactics of dictators and would-be dictators is to claim legitimacy based on some moment when they can claim to have been put in place by "the people."  That the people no longer support them, or never supported every single thing that the authoritarians propose, never seems to matter. Even people who are less further along the authoritarianism wannabe spectrum spin these delusions, as we saw in former President George W. Bush's  infamous reference  to his hair-thin 2004 reelection (along with his regent Dick Cheney) as an "accountability moment."  The basic idea is simple: I won, so I can do whatever I want, no matter how I won and no matter what has changed since I won or what people were thinking about (and not thinking about) when they voted for me . As has so often been the case for the past three-plus years, the worst kinds of authoritarian tactics and tropes that we see in the U.S. are also sh...

By Eric Segall The President of the United States is one of the few democratically elected leaders in the world who is both the administrative leader of the government and the symbolic head of the Country. In many nations, these roles are divided between a President and a Prime Minister or even a Prime Minister and royalty with no official governmental responsibilities. This dual capacity of our Chief Executive makes it imperative that the President carry out his duties with class and character because his behavior has a role-model quality that affects not just our youth but our entire national character. This is why I thought Bill Clinton should have resigned the Presidency after we found out that he lied under oath about having sexual relations with a White House intern. His basic defense, that having oral intimacy is not “having sex,” I believe, had negative consequences for a generation of young Americans, and his obvious lying and truth-cutting was not the kind of behavior we w...

Four days after Donald Trump was inaugurated for his second term as U.S. president, I wrote an essay for this blog titled Wait, Can He Actually Do That? Part 1: Overview and TikTok Executive Order . In it, I explained that, given the number of actions of dubious legality by President Trump and his administration, I envisioned a roughly weekly (or even more frequent) series. I am sorry to say that I was right to worry. Since then, I have been adding entries to the series in response to some, but hardly all, of the Trump administration's efforts to undermine the rule of law. Meanwhile, some of my other writings and those of my co-bloggers not titled with the "Wait, Can He Actually Do That?" brand could also be included in the series. For simplicity, however, the running list below--which I'll update each time I write a new entry in the series--includes only those essays that I've formally designated as part of the series. As I've noted in various of the essays i...