I have previously written about my fundamental disagreement with the aspects of the emoluments challenges filed by various academics. We discussed the prior denial of the challenge by the Fourth Circuit. Now, the D.C. Circuit has issued a unanimous rejection of the challenge. It is a major victory for the Trump Administration and again raises the questions over the coverage of these claims, which largely omitted discussion of the considerable barriers facing these filings. It is a rejection of the challenge brought by Senators Richard Blumenthal (D., Conn.) and 215 other members of Congress.
The three-judge panel — Judges Karen Henderson, David Tatel and Thomas Griffith — unanimously ruled that the Democratic lawmakers lack the standing to challenge the President.
The court noted that
“The Members can, and likely will, continue to use their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit. But we will not — indeed we cannot — participate in this debate. The Constitution permits the Judiciary to speak only in the context of an Article III case or controversy and this lawsuit presents neither.”
In other words, do not darken our doorstep again.
Earlier the Fourth Circuit rejected this challenge in a separate case.
The challenges were filed a couple years ago by law professors and advocacy groups. Previous filings were made by CREW’s board chair and vice-chair Norman Eisen and Richard Painter, Constitutional law scholars Erwin Chemerinsky, Laurence H. Tribe and Zephyr Teachout, and Deepak Gupta of Gupta Wessler PLLC. Eisen was later hired by the House Democrats to help direct its investigations against Trump.
Judge Paul Niemeyer declared these theories as speculative and “simply too attenuated” to satisfy constitutional analysis. He noted that many people, including diplomats, likely avoid the hotel due to its association and it is not clear what the injunction would do for a hotel bearing the President’s name: “the Hotel would still be publicly associated with the President, would still bear his name, and would still financially benefit members of his family.”
The ruling also supports the argument of the White House that it is important for the President to be able to go to court to raise such challenges, an issue that was at the heart of the impeachment debate. I testified that the House was premature in its impeachment after arguably the shortest period of investigation of any presidential impeachment. That abbreviated period made going to the court (rather than yielding to congressional demands) an effective high crime and misdemeanor. While the issues were not same, the point is that there are a variety of challenges that past Administrations have raised in such cases. Both branches have turned to the judiciary to address such conflicts. Indeed, both Richard Nixon and Bill Clinton were allowed to take challenges all the way to the Supreme Court before facing impeachment.
Here is the opinion: Blumenthal v. Trump