NEW YORK ― A Washington ethics watchdog that sued President Donald Trump on Monday over his ongoing business dealings with foreign governments may not get a chance to make its case in court at all.
The case, which asks a federal judge in Manhattan to declare that Trump is violating the Constitution’s ban on foreign “emoluments” for federal officials, may suffer from lack of standing — a legal requirement every plaintiff must meet before stepping foot in federal court.
Rules around standing require Citizens for Responsibility and Ethics in Washington, which filed the much-publicized legal action against Trump, to show that the group has suffered a concrete injury by the president’s failure to sever business ties ― a decision the organization claims violates the foreign emoluments clause, which forbids accepting anything that may amount to a bribe from a foreign government.
Without that showing, U.S. District Judge Ronnie Abrams would have no option but to dismiss the case — no matter how meritorious the underlying constitutional issue may be. The Supreme Court, for one, has never clarified the meaning of the clause.
To clear the standing hurdle, the lawsuit says that CREW is experiencing a drain on its resources: fielding hundreds of inquiries from the media, educating the public, conducting legal research and even hiring a senior attorney to help it carry out its mission in the Trump era.
All of this, CREW claims, amounts to harm that it otherwise wouldn’t suffer if it weren’t for the president’s unprecedented business entanglements.
But several legal scholars have cast doubt on the claim that CREW’s harm is sufficiently serious to meet the standing requirement and see it as likely that Abrams will dismiss the case because the courts could do nothing to fix the harm.
“Trump didn’t cause the media to ask those questions; the media chose to ask those questions” of CREW, Andrew Hessick, a law professor at the University of North Carolina, wrote in a blog on the Yale Journal on Regulation. “In the standing jargon, the questions aren’t traceable to Trump’s actions.”
“Simply put, there’s nothing that distinguishes CREW from an ordinary citizen ― there’s no particularized injury, and their injury is simply a generalized grievance that the public at large shares,” concurred Derek Mueller, who teaches law at Pepperdine University in California, in his blog.
As recently as last year, the Supreme Court reaffirmed the constitutional principle that courts can only step in and resolve disputes when a plaintiff has actually been harmed by a defendant’s actions.
“To establish injury in fact,” explained Justice Samuel Alito in an opinion citing a classic decision on standing by the late Justice Antonin Scalia, “a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.”
But here CREW may not have an individualized right to the president being in compliance with the Constitution’s anti-bribery provision because, as Hessick notes, every citizen also shares similar concerns. And Congress hasn’t passed a separate law to enforce the prohibition in the courts.
“This injury is self-inflicted, and does not find support in the Court’s caselaw,” wrote Josh Blackman in a detailed post analyzing the ways CREW’s argument on its standing may fail.
As Blackman and others point out, there’s the added wrinkle that the very text of the foreign emoluments clause leaves it up to Congress, not the courts, to “consent” to a federal official’s acceptance of gifts by foreign entities. And thus the prohibition on enriching yourself from those gifts is a battle left to the political process — arguably by way of impeachment.
That’s not to say others may be better positioned than CREW to show an actual injury from Trump’s murky business dealings. The American Civil Liberties Union is reportedly looking for a hotel or a similar business that may be able to claim that, say, the Trump International Hotel in Washington is unfairly gobbling up global bookings as world leaders attempt to curry favor with its owner.
But under more traditional standing principles, CREW could very well be on the losing side — even if two of the lawsuit’s masterminds, ethics experts Norm Eisen and Richard Painter, have a strong argument that Trump’s plan to deal with conflicts of interest is woefully inadequate.
It’s a case that they’ve made loud and clear to the public and in the press. They just may not be the right parties to make it in a court of law.