“Standing” Against Trump – CREW’s Foreign Emoluments Clause Challenge to Trump’s Presidency and its Justiciable Viability

By: Alex Thrasher[1]

On January 23, 2017, the Citizens for Responsibility and Ethics in Washington (“CREW”), a self-described “nonprofit, nonpartisan organization . . . that works on behalf of the public to foster an ethical and accountable government and reduce the influence of money in politics”[2] initiated a lawsuit against recently inaugurated President Donald Trump.[3] In the complaint, filed in the United States District Court for the Southern District of New York, CREW alleges that President Trump has committed, and will continue to commit, violations of the Foreign Emoluments Clause of the U.S. Constitution.[4] Specifically, CREW alleges that, at a minimum, these violations include:

(a) leases held by foreign-government-owned entities in New York’s Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant’s Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by [Trump]; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program “The Apprentice” and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries.[5]

The Foreign Emoluments Clause of the Constitution states that “no Person holding any Office of Profit or Trust [as a representative of the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”[6] CREW argues that although the courts have not been presented with many opportunities to interpret this clause, it is commonly accepted that the office of the President is bound by the clause, and that the President is “prevent[ed] … from accepting anything of value, monetary or nonmonetary, from any foreign government or its agent or instrument without congressional consent.”[7] CREW asserts that because President Trump has refused to divest himself of his expansive, global business interests prior to entering office, he continues to receive pecuniary benefits, at least in part, from foreign governments.[8]

For example, CREW points to current tenants of Trump Tower in New York City, which include the government-owned Industrial and Commercial Bank of China, and the Abu Dhabi Tourism and Culture Authority, which is owned by the United Arab Emirates.[9] CREW argues that Trump’s continued acceptance of any payments from these entities as tenants of Trump Tower, in the absence of congressional consent, constitutes a violation of the Foreign Emoluments Clause.

CREW further alleges that since Trump’s election, foreign diplomats have flocked to Trump’s new hotel in Washington, D.C., “eager to curry favor [with Trump] and afraid of what [he] may think or do if they send their business elsewhere in Washington.”[10] Additionally, CREW lists ten countries in which President Trump has business ties that have led, or likely will lead, to violations of the Foreign Emoluments Clause.

As a secondary allegation, CREW claims Trump’s domestic business interests are likely to cause him to violate Article II, Section 1, Clause 7 of the U.S. Constitution, the “Domestic Emoluments Clause,”[11] which similarly prohibits the President from receiving any benefit during his term of office from the United States or any state individually.[12]

As a result of the many examples of Trump’s violations of the Emoluments Clause alleged in the complaint, CREW contends it has suffered injuries in the form of the diversion and expense of its valuable resources to “counteract [Trump’s alleged] violations, impairing CREW’s ability to accomplish its mission.”[13] In support of this claim, CREW insists it has incurred the expenses of: “a significant amount of time and resources since the election educating the public about the Foreign Emoluments Clause and Defendant’s violations of it,” “hundreds of requests from the media about [Trump’s] conflicts of interest,” and the “substantial number of hours responding to them.”[14] CREW also asserts that because of Trump’s violations, it has not had the time and resources to respond to other important requests related to other “money in politics issues and congressional ethics issues.”[15] Over the course of twenty-three paragraphs, CREW sets forth other nuanced ways in which it has been primarily injured, all relating to the diversion or expense of its resources stemming from Trump’s alleged violations of the Emoluments Clause.[16]

To remedy these alleged injuries, CREW requests the court enter a declaratory judgment “as to the meaning of the Foreign Emoluments Clause and whether [President Trump’s] conduct is violating and will violate [it].”[17] Additionally, CREW prays for injunctive relief to stop current, and prevent any additional, violations of the Foreign Emoluments Clause.

This lawsuit against Trump raises an interesting question as to whether CREW has the requisite standing to seek judicial relief. Generally speaking, an organization has standing when it can show that a defendant’s conduct interferes with the organization’s ability to fulfill its purposes.[18] The precedent on which CREW rests its assertion of standing is the Supreme Court’s decision in Havens Realty Corp. v. Coleman.[19] In Havens Realty, individuals and an organization filed suit against the owner of an apartment complex alleging violation of section 804 of the Fair Housing Act of 1968.[20] According to the plaintiffs, black apartment seekers were told there were no vacancies for rent, while white apartment seekers were told there were.[21]

The plaintiff organization, HOME, was a nonprofit entity whose purpose was “to make equal opportunity in housing a reality in the Richmond Metropolitan Area.”[22] HOME’s activities included providing housing counseling services, and investigating and referring complaints of housing discrimination.[23] HOME alleged that because of the discriminatory rental practices of Havens Realty, “the organization’s counseling and referral services [were frustrated], with a consequent drain on resources.”[24]

In a rather brief discussion, the Supreme Court applied the same inquiry into whether HOME had standing to bring suit based on these allegations in the same way it would in the case of an individual: “Has the plaintiff ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction?”[25] The Court held it improper for the district court to dismiss HOME’s claims for lack of standing to sue under the Fair Housing Act and found that:

If, as broadly alleged, [Haven Realty’s] practices have perceptibly impaired HOME’s ability to provide counseling and referral services . . . there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests.[26]

In cases after Havens Realty, the Supreme Court has affirmed the fundamental requirements of Article III standing. For example, in Lujan v. Defenders of Wildlife, the Court succinctly noted, “the irreducible constitutional minimum of standing contains three elements.”[27] First, the plaintiff must have suffered an injury in fact that is both “concrete and particularized,” and “actual or imminent,” and not merely hypothetical.[28] Second, there must be a causal connection between the injury and the conduct of which the plaintiff is complaining, which stems from the defendant’s conduct and not a third party.[29] Finally, it must be likely that the injury will be redressed by a favorable decision from the court.[30]

As recently as 2013, in Clapper v. Amnesty International USA, the Supreme Court determined that plaintiff-respondents lacked standing to sue under the Foreign Intelligence Surveillance Act of 1978[31] (“FISA”) when the alleged injury was not fairly traceable to the defendant’s conduct.[32]   Respondents argued that the risk of surveillance under FISA was so great that they were forced to take costly measures to protect the confidentiality of their international communications, and this present burden against almost certain future injury was fairly traceable to FISA.[33] Placing a heavy emphasis on the causal connection between the defendant’s conduct and the alleged injury, the Court held that measures taken by the plaintiff-respondents to avoid unauthorized surveillance under FISA was insufficient to establish standing, and the claims were too speculative and based only on a chain of events that may never even occur.[34]

Although Havens Realty seems to provide CREW with a legal leg to “stand” on, Lujan and its progeny suggest that the courts may require a more direct and transparent path between an alleged act by a defendant and the purported harm by a plaintiff than is presented in CREW’s complaint. As a result, CREW may have difficulty overcoming judicial skepticism about just how much harm it has actually incurred, and how traceable that alleged harm is to the conduct of President Trump.

As a result of President Trump’s vast business holdings and his refusal to conform to Washington’s customs, perhaps no other President has entered office amid so much controversy. This lawsuit, one of what will likely be many to come throughout Trump’s presidency, presents a multitude of novel issues, such as what actually constitutes a violation of the Foreign Emoluments Clause, and whether the Clause really applies to the President as CREW argues it does.[35] Of all the questions presented, however, the standing issue is arguably the most critical. Without Article III standing, a federal court may not even begin to properly adjudicate the other issues presented. It will be interesting to see how the prior rulings in Havens Realty, Lujan, and Clapper are applied in the present case. No matter how the district court rules, it seems likely that this constitutional challenge may be ripe for review by the Supreme Court in the near future.

[1] Candidate for Juris Doctor, Cumberland School of Law, 2018; Bachelor of Arts, Washington University in St. Louis, 2008.

[2] Complaint at 2, Citizens for Responsibility and Ethics in Washington v. Trump (S.D.N.Y 2017) (No. 1:17-cv-00458-RA).

[3] Id.

[4] Id. at 3. See U.S. Const. art. I, § 9, cl. 8.

[5] Id. at 3.

[6] U.S. Const. Art. I, § 9, cl. 8.

[7] Complaint at 3.

[8] Complaint at 9.

[9] Complaint at 12-13.

[10] Complaint at 13 (citing Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump is place to be, Wash. Post (Nov. 18, 2016); Eric Lipton & Susanne Craig, At Trump Hotel in Washington, Champagne Toasts in an Ethical ‘Minefield’, N.Y. Times (Jan. 19, 2017).

[11] U.S. Const. Art. II, § 2, cl. 7.

[12] Complaint at 22.

[13] Complaint at 23.

[14] Id.

[15] Id. at 24.

[16] See id. at 22-32.

[17] Id. at 35.

[18] Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

[19] Complaint at 4.

[20] See 42 U.S.C. § 3604.

[21] Havens Realty, at 368.

[22] Id. (citing Appellant’s Brief, at 13, ¶ 8) (internal quotation marks omitted).

[23] Id. (citing Appellant’s Brief, at 14, ¶¶ 8a, 8b).

[24] Id. at 369 (citing Appellant’s Brief, at 17, ¶ 16); See also Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904-05 (2d Cir. 1993) (The court held that activities relating to identifying and counteracting the defendant’s conduct detracted from the organization’s workers’ normal tasks was sufficient to establish injury in fact. Id. at 905).

[25] Id. at 378-379 (quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977), quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

[26] Id. at 379 (referencing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)).

[27] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

[28] Id. See Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41 (1972).

[29] Id. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-41 (1976).

[30] Id. See Simon, 426 U.S. at 38.

[31] 50 U.S.C. § 1881(a)

[32] Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013).

[33] Clapper, 133 S. Ct. at 1146.

[34] Id. at 1141.

[35] See Jonathan H Adler, Does the emoluments clause lawsuit against President Trump stand a chance?, Wash. Post, Jan. 23, 2017.

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