What happens if the emoluments lawsuit against Donald Trump succeeds?
In the news coverage of the lawsuit brought by the District of Columbia and the State of Maryland against Donald Trump yesterday, there was much analysis of the constitutional questions surrounding whether the income that Trump received as a result of his widespread holdings meant that he was in violation of the emoluments clauses of the constitution, but nothing, as far as I could tell, if the lawsuit succeeds.
For those not familiar with the legal issues involved, the emoluments clauses of the constitution — there are two, a Foreign and a Domestic one — place restrictions on the president’s income so that he cannot be influenced by payments flowing from foreign sources or from state governments.
Much of the legal wrangling already underway in the United States District Court for the District of Maryland deals with whether the income that Trump receives from, say, international guests who stay in his hotels, qualifies as an emolument in the constitutional sense of that word. And no doubt, if the suit moves forward, there will be a number of arguments presented concerning such qualification.
But what if the plaintiffs, the Attorneys General of the District of Columbia and the State of Maryland succeed? What exactly do they hope to make the defendant Donald Trump do? It turns out, their objectives are stated rather succinctly in the Prayer for Relief at the end of their filing:
(a) A declaratory judgment, stating that the defendant has violated and will continue to violate the Foreign and Domestic Emoluments Clauses, as construed by this Court;
(b) injunctive relief, enjoining the defendant from violating the Foreign and Domestic Emoluments Clauses, as construed by this Court;
(c) such other and further relief as this Court may deem just and proper.
It should be noted in passing that the plaintiffs also hope that Trump would be required by the court to provide them personal financial information, including his tax returns, as part of the discovery process that allows them to seek evidence in support of their claims. These revelations may be a political objective, if not the explicit legal objective, of their filing. If they succeed in persuading the court that they need these documents to pursue their case, then the president would find himself under court order to hand them over.
But, putting the question of discovery and its implications aside for the time being, what if the plaintiffs succeed in persuading the district court to find in their favor and the case moves up the federal court ladder to the Supreme Court and SCOTUS agrees: (1) the president has violated the Emolument Clauses, and, (2) as a result, he must cease in this violation?
As far as the first part of such a finding, it should be noted that it is a legal conclusion, not a determination that a crime has been committed; it would be left up to the House of Representatives to make this charge. The second part of the finding would result in an order that Trump divest himself of all holdings brought into question under the emoluments clauses, in other words that he comply with conflict of interest remedies relating to business interests that are implicated in the violation of the emoluments clauses.
On one hand, if the president complies with the court’s decision, then, given the current composition of the House of Representatives, his impeachment would, more than likely, not be pursued. At the end of the legal struggle, Donald Trump would emerge having had only to divest himself of some his widespread business interests, something that other modern presidents have done voluntarily before assuming office.
On the other hand, if Trump defies the court, then we would be looking at a real constitutional crisis the likes of which we have never seen. (A similar crisis would emerge if Trump refuses to hand over documents requested during discovery, as described above.) Although the Marbury v. Madison decision of 1803 declared the Supreme Court to be the ultimate arbiter of the law of the land, the reality is that judicial supremacy only works with the concurrence of the executive branch and of congress.
There is nothing about this president that suggests to me even a cursory understanding, much less an abiding respect, for the law of the land. And I also lack confidence that the ethically-inert Republic-controlled House of Representatives would bring forward articles of impeachment in these circumstances, either. So, if the emoluments lawsuit succeeds, we could very well could find ourselves with a president serving in office — with the tacit approval of congress — while in defiance of a Supreme Court order.
I don’t believe that it will come to this for a couple of reasons.
Even though a legal defeat over the emoluments clauses might represent a loss of face for Trump, my guess is that he would comply with any Supreme Court order and seize the opportunity to spin the affair as the “greatest presidential divestment in history,” casting himself as the “most honest president” who has ever occupied the Oval Office. After all was said and done, Trump would make much political hay over doing little more than abiding by conventional conflict-of-interest remedies that he should have pursued before taking office.
But, to be honest, I don’t believe that the emoluments lawsuit will get very far. Although the attorneys-general argue for their standing to pursue a lawsuit against the president based, in part, on how the interests of their states are harmed by Trump’s business operations at the focus of their emoluments claims, their case is not very compelling.
In this regard, D.C. Attorney General Karl A. Racine may have tipped his hand too far at a press conference announcing the filing of the lawsuit by declaring, “Congress has given the president a total pass. State attorney generals are serving as a necessary check and balance in the Trump era where others failed.” I believe this declaration is an accurate reflection of the plaintiffs’ intentions. Unfortunately it indicates they see themselves as a self-appointed fourth branch of government. I don’t think that this kind of constitutional end-around will sit well with federal court judges.
At the end of the day, our system of government relies on the respect of the rule of law by the three co-equal branches of government. It was constructed in a way to remedy a situation in which the president has run amok, by assuming that congress would rise to defend the integrity of the constitutional order. The framers did not anticipate circumstances we find ourselves in today with a despotic president and a feckless House of Representatives.
Lawsuits like this one and other legal maneuvering may be useful tactics to keep the administration and its congressional allies off balance, but they should not be confused with a path to victory. As much as I would like to believe that a successful emoluments lawsuit would solve the problem we face with Donald Trump, if we are to succeed in reforming our government it will be only by winning at the polls in 2018 and again in 2020. Let’s not get distracted and lose sight of this goal.
