Supporters of US President Donald Trump participate in the Million MAGA March to protest the outcome of the 2020 presidential election, in front of the US Supreme Court on December 12, 2020 in Washington, DC.
Closing one of the circles on the Donald Trump presidency, the Supreme Court dismissed two cases on Monday that were filed immediately after Trump took office. Both raised questions about whether Trump’s continued business holdings violated the Emoluments Clause of the Constitution, which the high court considered moot.
Though many agreed that Trump’s business dealings amounted to improper conflicts of interest, the cases did not present easy legal challenges. Trump’s business holdings created many ways for Trump, his family and his businesses to profit from his presidency, but given the unprecedented facts involved, the constitutionality of the matter had never been fully examined by courts. Early efforts by anti-corruption watchdogs stumbled over multiple procedural problems, particularly standing.
Federal judges in New York and Washington, D.C. repeatedly asked: Even if Trump’s holdings were illegal, who, exactly, was directly damaged sufficiently to bring a lawsuit? After multiple filings and a legal dream-team was assembled to litigate the case, it was finally allowed to proceed. Most recently, the United States Court of Appeals for the Second Circuit revived a previously dismissed emoluments case in a ruling last August.
The high court’s order brings that and a companion case to an end.
Offering no opinion in the case, the court’s reasoning is obvious: because Trump is no longer president, any emoluments violations that would have existed have now ended. Therefore, there is no reason for judicial intervention.
The order states simply:
“The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).”
United States v. Munsingwear, Inc. is a 1950 case that mandates the proper procedure for the Court to dispose of a civil case that has become moot. Accordingly, SCOTUS reversed the decision below, then sent the case back to the Second Circuit, with a direction that the case be dismissed.
In response to the Court’s dismissal, the primary plaintiff in one of the cases, Citizens for Responsibility and Ethics in Washington, released the following statement of its Executive Director Noah Bookbinder:
CREW sued Donald Trump on his first day in the Oval Office for systematic violations of the Emoluments Clauses of the Constitution. We were honored to work in that case with courageous competitors of Trump’s businesses who joined the lawsuit, in a subsequent case with the bold attorneys general of Maryland and the District of Columbia, and with an incredible team of lawyers to pursue these cases. These two emoluments cases continued to move forward successfully, including wins in two federal appeals courts, through four years of the Trump presidency, despite advancing novel legal theories and having the weight of a presidential administration arrayed against them. This important litigation made the American people aware for four years of the pervasive corruption that came from a president maintaining a global business and taking benefits and payments from foreign and domestic governments. Only Trump losing the presidency and leaving office ended these corrupt constitutional violations stopped these groundbreaking lawsuits.
Some experts have pointed to a potentially repetitive problem: litigation always takes time. As a result, legal challenges to emoluments violations will predictably become moot before any president could be held accountable.
Given the pace of the emoluments litigation — it started almost as soon as Trump took office and was nowhere near concluded when he left — it’s possible even a two-term president wouldn’t be in office long enough for the courts to fully address it. https://t.co/Wi1d0kCwOt
— Brad Heath (@bradheath) January 25, 2021
UC Irvine law professor Rick Hasen characterized the emoluments ruling as a reward for running out the clock:
And the Court dismisses the emoluments cases against Trump as now moot.
Trump ran out the clock on whether he was unconstitutionally personally enriching himself by use of his properties for government-related business.— Rick Hasen (@rickhasen) January 25, 2021
Others have criticized the ruling for eliminating a legal basis for demanding Trump return any ill-gotten gains.
That’s insane. They’re not moot. He still has the money. When any other federal employee violates the emoluments clause they have to forfeit the money. https://t.co/09kAERxBB7
— Walter Shaub (@waltshaub) January 25, 2021
Even some of Trump’s harshest critics, however, have agreed that the dismissal for mootness was the right legal outcome.
No. It’s unquestionably moot. The cases did not seek retrospective relief, such as damages, but rather only prospective relief—declarations and and injunctions addressing future conduct. But he can’t violate the emoluments clause any more, since he’s no longer president. https://t.co/7P04wZDH1n
— George Conway (@gtconway3d) January 25, 2021
University of Iowa law professor Andy Grewal weighed in via Twitter on the immediate impact of the ruling:
I guess we’ll never figure out whether selling a taco bowl to a foreign diplomat violates the Constitution. https://t.co/39Ac1mVKwa
— Andy Grewal (@AndyGrewal) January 25, 2021
Law&Crime spoke with Professor Grewal on Monday. He predicted that the Court’s decision may render the Emoluments Clause impotent for regulating future presidents as well:
The Court’s action is unsurprising, given that Trump has left office. But by vacating the decisions below, the Court has ensured that complex jurisdictional questions will have to be litigated all over again, should a similar challenge arise against a future President. It thus seems doubtful that Emoluments Clause litigation will play an important part in regulating the presidency.
The dismissal of Emoluments Clause litigation against Trump provides an interesting parallel to post-presidency impeachment. Many who oppose impeachment argue that holding Senate trial for a president whose term has ended is an unnecessary exercise that will prove harmful and divisive to the country. Still others say the Senate has no jurisdiction to put a former president on trial.
[image via Olivier Douliery /AFP via Getty Images]
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