An all-star team of lawyers, including two leading experts on presidential ethics and two of the most prominent constitutional scholars in the nation, will file a lawsuit on Monday challenging President Trump’s ongoing violation of an anti-corruption provision in the Constitution.
The suit alleges that Trump is in violation of the Emoluments Clause, which prohibits federal office holders from receiving “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”
Trump’s company, the Trump Organization, does regular business with foreign governments, presenting them with an opportunity to launder unconstitutional gifts to the president. A bank controlled by the Chinese government, for example, rents office space in Trump Tower. And the Embassy of Kuwait reportedly moved an event from the Four Seasons hotel to a hotel owned by Trump “after members of the Trump Organization pressured the ambassador to hold the event at the hotel owned by the president-elect.”
Although Trump announced at a press conference prior to his inauguration that he would take some steps to insulate himself from his company, Norm Eisen, former chief ethics counsel to President Obama and Richard Painter, who held the same job under President George W. Bush, released a statement saying that these steps are insufficient.
Mr. Trump did not make a clean break with his business ownership interests as his predecessors for four decades have done; did not establish a blind trust or the equivalent as bipartisan experts and OGE called for; entrusted trust responsibility in his family and a current employee, rather than in an independent trustee; did not screen all “emoluments …of any kind whatever,” as required by the constitution, but only some revenues, and only from his hotels; and offered an inadequate and scantily-detailed ethics wall.
Eisen and Painter are both counsel on the lawsuit, which will be filed by the advocacy group Citizens for Responsibility and Ethics in Washington. They are joined by a bevy of famous lawyers, including Harvard Professor Laurence Tribe and University of California, Irvine Dean Erwin Chemerinsky. Tribe and Chemerinsky have arguably done more to shape how the Constitution is taught to law students then any other legal scholars. They are the authors of rival treatises which are widely read by lawyers-to-be hoping to pass their Con Law exam.
Though CREW’s lawsuit presents a very strong case that Trump is violating the Constitution, the biggest obstacle facing this suit is likely to be a jurisdictional problem. In order to bring a lawsuit in federal court, a party must show that they have been injured in some way by the defendant — a requirement known as “standing.” Such an injury, moreover, cannot be rooted in a “generalized grievance” shared by the nation at large, but must be particular to the party filing the suit.
CREW claims that it has standing to bring this suit because it had “to divert resources from other work to monitor and respond to Mr. Trump’s activities,” according to a New York Times report on their lawsuit. They cite a 1982 Supreme Court decision, which held that a civil rights organization that sent African American “testers” to see whether landlords and home sellers were in compliance with federal housing law had standing to bring a lawsuit under a similar theory.
That 1982 case, however, was followed by other Supreme Court decisions urging courts to exercise more caution when considering whether a party has standing. In its seminal decision in Lujan v. Defenders of Wildlife, for example, the Court explained that “there must be a causal connection between the injury and the conduct complained of.” It is likely that the conservative Roberts Court will be skeptical of CREW’s theory of standing, as it could easily conclude that CREW’s own decisions regarding how to divert its resources were the cause of its injury, not Trump’s unconstitutional actions.
If CREW’s case ultimately fails on standing grounds, that does not necessarily mean that no lawsuit can prevail. As the Times notes, the ACLU “hopes to find a hotel or bed-and-breakfast that might compete against a Trump hotel as a party that might have standing to sue.” A rival business which actually loses money because of Trump’s unconstitutional actions would have a much stronger theory of standing than CREW.
The ACLU’s theory, however, will require it to find a business willing to challenge a notoriously vindictive rival who is now armed with the full power of the United States of America’s executive branch. It may prove difficult to find such a business.
For this reason, the only entity that may truly be able to force Trump to follow the Constitution is Congress, which can impeach the president.