WASHINGTON (CN) — With a seemingly impossible hurdle to jump, Democrats argued Monday morning before the D.C. Circuit that they can sue President Donald Trump for ignoring the Constitution as foreign governments poured money into his pockets.
The Justice Department argued over 200 Democrats led by Connecticut Senator Richard Blumenthal lack standing because they brought the lawsuit not as one congressional body but as individual members.
The oral arguments kicked off just minutes after the start of a House Judiciary Committee hearing on Capitol Hill where lawmakers came to blows over impeaching the president for allegedly pressuring Ukraine to interfere in the 2020 presidential election.
The White House is looking to the three-judge panel to overturn the lower court ruling that the Democrats are entitled to sue Trump for allegedly violating the foreign emoluments clause in the Constitution — which, unlike the domestic emoluments clause, requires the president to seek Congress’ approval before profiting from his office — as he reeled in money across his business empire from foreign government officials.
Justice Department attorney Hashim Mooppan said Monday the only legal course of action in the inter-branch dispute is for Congress to pass a law.
U.S. Circuit Judge David Tatel shot back, asking Mooppan if lawmakers could sue to enforce such a law. The Justice Department attorney replied Congress could not.
“Then we’re right back where we started,” said Tatel, adding impeachment would be the only remaining remedy.
Dodging the explosive topic, Moopan said: “I’m not going to take a position today on whether the matters in this case would rise to that level.”
Despite Tatel drilling the Justice Department with questions, the Bill Clinton appointee and his George W. Bush-appointed bench mate U.S. District Judge Thomas Griffith failed to get an answer from the Democrats’ lawyer on standing.
Tatel repeatedly read off Supreme Court Justice Ruth Bader Ginsburg’s opinion that a single house of Congress lacks the capacity to bring a case on behalf of the legislative branch.
Attorney Elizabeth Wydra, with the Constitutional Accountability Center, said both the D.C. Circuit and the Supreme Court have left a “narrow window but not an impenetrable window” for the Democrats to sue.
With a direct shot at the government’s suggested remedy, Wydra said absent a super majority vote to override a presidential veto, Trump would have to sign off on a law passed by Congress to block his foreign business ties and “tie his own hands.”
Mooppan had contested that if the Democrats “just sit silent as they have there is no consent” allowing Trump to profit from his time in the Oval Office.
But Wydra said the government — “flipping the foreign emoluments clause on its head” — suggests Trump can accept any foreign money so long as Congress does not precisely constrain him.
“That’s not the way the Constitution is written,” Wydra told Tatel and Griffith, along with U.S. Circuit Judge Karen Henderson, appointed by President Ronald Reagan. The president, Wydra argued, has withheld the individual plaintiffs’ right to vote on the issue as members of Congress.
But the Democrats’ attorney failed to quiet the judges’ distress over standing.
“Go back, get a resolution from the House, they do it all the time,” Griffith said.
He said, along with Tatel, that the Constitutional Convention produced a clear role for Congress to prevent foreign money from crawling into the executive branch.
But as the Justice Department has done in the many cases brought over Trump allegedly violating the emoluments clause, Mooppan leaned in on the provision regulating all federal officials.
Giving the example of an office-holder in the 18th century who owned an inn questioning each patron on whether they were a foreigner, the Justice Department attorney said the Democrats’ interpretation of the foreign emoluments clause “seems utterly implausible” because many public officials at the time the Constitution was penned also operated side businesses.
The historical illustration followed Tatel pointing out the Saudi Arabian government racked up $275,000 in bills at the Trump International Hotel located blocks from the White House while lobbying in D.C. against a bill that would allow the families of 9/11 victims to sue the kingdom for damages.
If the government is correct that Trump can proceed with business as usual while operating as the country’s chief public official, the Saudi patronage is not illegal, Tatel said.
“But if the Saudi government gives the president an expensive gift, that would be, right?” Tatel asked. Mooppan confirmed the judge’s take.
But in the end the Clinton appointee latched on to Griffith’s argument, telling Wydra, “You’re not Congress.”