Judge Gives the #Resistance Some Bad News

The so-called #Resistance, those members of society with nothing better to do that stew in the fetid broth of Trump-hate, had been trying to engage is protracted lawfare against President Trump because he has refused to divest himself of his property sufficiently to pass their high-minded and principled scrutiny. One of the favorite angles used by these folks is to claim that the fact that foreign visitors to use hotels owned by a company in which Trump has a financial stake is a violation of the Emoluments Clause to the Constitution. That clause reads:

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.

The argument is disingenuous on its face. The Clause clearly refers to a person in the federal government taking gifts from a foreign government. It doesn’t refer to a foreign government official staying at a Trump property any more than it refers to a federal employee owning bonds issued by a foreign government. But the Resistance gonna Resist. Just two days after Trump was inaugurated, the left-wing group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit in New York accusing Trump of violating the Constitution and demanding his summary execution for treason. I’m only half joking about the last part. Another suit was filed by a random NYC lawyer slumming for temporary fame and adulation by claiming he was personally hurt by Trump in ways most of us lesser folks couldn’t comprehend.

Their theory was novel, to say the least:

The future of crew’s case could hinge on whether judges accept the group’s premise that the emoluments issue is creating a class of victims. The pages and pages of evidence submitted in the suit include details of Trump’s ownership in L.L.C.s; partnerships operating in at least twenty foreign countries; and the workings of the Trump International Hotel in Washington, D.C., where news organizations have documented spikes in bookings by foreign diplomats “eager to curry favor” with Trump. The hotel recently hired a “director of diplomatic sales” to court this foreign-government consumer base, and has aggressively raised its prices since the election. crew contends that the elevated profit the hotel has reported is coming largely from foreign business. On Wednesday, in court, Deepak Gupta, an attorney arguing on behalf of crew who was previously litigation counsel for the Consumer Financial Protection Bureau, called the hotel “an emoluments magnet.”

Today, the judge, an Obama appointee ruled:

A federal judge on Thursday dismissed a pair of lawsuits claiming that President Donald Trump’s failure to divest himself of his real estate empire and other business holdings violated the Constitution’s provision banning receipt of foreign “emoluments” while in public office.

U.S. District Court Judge George Daniels ruled that the two suits were fatally flawed because the plaintiffs failed to show injury directly related to the use of Trump’s properties by foreign officials and governments.

Daniels, who sits in Manhattan and is an appointee of President Bill Clinton, also said the issue was one that Congress should police, not the courts.

“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,” the judge wrote. “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.”

One of the cases dismissed Thursday was filed by Citizens for Responsibility and Ethics in Washington, or CREW, along with a group of employees and owners of hospitality businesses like restaurant and hotels. The other suit, brought as a class action on behalf of members of the public, was filed by an individual New York attorney, William Weinstein.

Daniels concluded that all the plaintiffs lacked standing to sue. He also suggested that if foreign governments were patronizing Trump businesses as a result of his presidency, this wouldn’t amount to a violation of the emoluments clause unless the president encouraged them to do so to receive some benefit from the U.S. government.

So the Emoluments Clause silver bullet has turned out to be a dud. But this is not going to deter the #Resistance.

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