It’s a strenuous effort to grab the Holy Grail of La Résistance, but one probably doomed to failure — eventually. The attorneys general of Maryland and Washington DC want access to the tax returns of the Trump Organization, issuing subpoenas late yesterday as part of their efforts to establish violations of the Emoluments Clause by Donald Trump:
Subpoenas served on the Trump Organization and a dozen related business entities by the attorneys general of the District of Columbia and Maryland on Wednesday include demands for tax documents — raising the possibility that President Donald Trump’s corporate returns could eventually be made public.
While the subpoenas don’t ask for the President’s personal tax returns, tax documents related to his businesses could begin to fill out a picture of the President’s own finances by providing information about his main income sources. …
The attorneys general moved ahead with subpoenas on Wednesday after a federal judge on Monday set in motion the schedule for them to begin collecting evidence in their lawsuit challenging Trump’s ongoing business interests.
The lawsuit by DC and Maryland claims Trump is in violation of the Constitution’s ban on emoluments — payments from foreign or domestic government entities to the President — because of his continued interest in the Trump International Hotel.
That will likely get a serious challenge in the DC Circuit appellate court. It’s a little mystifying how the federal district court allowed the lawsuit to proceed in the first place. What specific standing do Maryland and DC have to sue the Trump Organization over a restriction on Trump as president in the first place? Or for that matter, Trump himself?
A different court spiked a similar effort by CREW almost exactly a year ago on standing issues, too. Judge George Daniels called into question whether anyone except Congress could take action on emoluments. The text of the clause itself gives Congress the sole authority to grant consent to “emoluments,” and so without action by Congress there is no standing to pursue any alleged violation of the clause. He also reminded the parties that the Supreme Court has a precedent by which the judiciary can’t play a role in constitutional crises until the other two branches have already taken action:
Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant’s conduct. As such, this case presents a non-justiciable political question. …
In Goldwater v. Carter, 444 U.S. 996 (1979), Justice Powell articulated a test to be used in cases involving a confrontation between the legislative and executive branches to determine whether the issue presented was ripe for review, which is particularly instructive here. In that case, members of Congress brought suit against President Carter after he announced his intention to unilaterally terminate a mutual defense treaty between the United States and Taiwan. Goldwater v. Carter, 617 F.2d 697, 700-01 (D.C. Cir. 1979), vacated, 444 U.S. 996 (1979). The plaintiffs there claimed that such action, without ratification from the Senate, infringed upon Congress’s treaty power. Id. The D.C. Circuit reversed the lower court’s ruling and held that the President did not exceed his constitutional authority in terminating the treaty. Id. at 709.
In remanding the case with instructions to dismiss the complaint, Justice Powell stated that “a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority.” …
If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, “it is not [this Court’s] task to do so.” Goldwater, 444 U.S. at 998. This Court will not tell Congress how it should or should not assert its power in responding to Defendant’s alleged violations of the Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs’ Foreign Emoluments Clause claims are not ripe for adjudication.
This effort is just a rerun of the same issues Daniels addressed. The two plaintiffs in this lawsuit have tried folding in new claims that Trump’s alleged “emoluments” amount to unfair market advantages for the Trump Organization. They plan to depose a number of local business to document those complaints. A similar lawsuit has already been dismissed last month, however, CNN points out:
The attorneys general are also planning to send subpoenas to 18 private businesses, both hotels and restaurants in the DC and Maryland area, that directly compete with the Trump International Hotel and BLT Prime, according to Raquel Coombs, spokeswoman in the Maryland Attorney General’s office.
In November, a DC judge dismissed a challenge from a Washington wine bar challenging Trump’s involvement in the Trump International Hotel. In that lawsuit, the proprietors of Cork Wine Bar said it suffered because lobbyists and other political-minded customers chose to host fundraisers, events and dinners at the Trump International Hotel rather than at its business. Judge Richard Leon of the DC District Court said then in his opinion that Cork couldn’t claim a competitive disadvantage just because of a public figure’s fame.
These are nonsense arguments. Even if a president still has financial interests in his businesses while in office, normal business transactions do not amount to “emoluments.” The proper forum for debating that, even if it were arguable, is not in federal or state court but in Congress. This lawsuit is akin to asking a federal court to impeach Trump or to order Congress to do so. That isn’t their role, as Judge Daniels explained already.
It’s nothing more than a publicity stunt by attorneys general with political ambitions. Before the Trump Organization turns over a single page of information, they’ll challenge it to the appellate courts, which will eventually tell everyone what Judge Daniels told CREW last year. The Emoluments Clause is not a statute but a political question, and unless and until Congress takes it up, no one else has standing to do so.
Addendum Be sure to read Jonathan Adler’s excellent deconstruction of standing and the Emoluments Clause from last year.
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