Second Circuit Revives Emoluments Lawsuit Against Trump

The Trump International Hotel is seen Jan. 23, 2019, in Washington. (AP Photo/Alex Brandon)

MANHATTAN (CN) – Putting teeth into anti-corruption provisions of the U.S. Constitution, the Second Circuit found on Friday morning that the judiciary has the power to reduce incentives for government officials “currying favor” with President Donald Trump by visiting his restaurants and hotels.

“Plaintiffs need not prove that every government official who chooses a Trump establishment does so to curry favor with the president by enriching him, nor need plaintiffs prove that a particular government official chose or will choose a Trump establishment for the sole or even the primary reason of earning the president’s favor,” the majority of the court found in a 64-page opinion.

“Plaintiffs need only plausibly allege that the president’s receipt of emoluments generates an unlawful competitive advantage for the Trump establishments,” the ruling continues.

Under the Constitution’s emoluments clauses, a politician may not accept “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

Though previously rarely enforced, the watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, noted in its lawsuit that the Trump presidency brought unique concerns.

“Never before have the people of the United States elected a president with business interests as vast, complicated, and secret as those of Donald J. Trump,” declared the original complaint, filed days after Trump’s inauguration in January 2017.

CREW Executive Director Noah Bookbinder celebrated Friday’s ruling.

“We never wanted to be in a position where it would be necessary to go to court to compel the president of the United States to follow the Constitution,” Bookbinder said in a statement. “However, President Trump left us no choice, and we will proudly fight as long as needed to ensure Americans are represented by an ethical government under the rule of law.”

“If President Trump would like to avoid the case going further and curtail the serious harms caused by his unconstitutional conduct, now would be a good time to divest from his businesses and end his violations of the Emoluments Clauses of the Constitution,” he added.

U.S. Circuit Judge Pierre Leval, who wrote the majority opinion, made clear that the judiciary could force the president to divest if he does not.

“Injunctive relief could be fashioned along many different lines that would adequately reduce the incentive for government officials to patronize Trump establishments in the hope of currying favor with the President,” the opinion states, adding in a footnote that the court could bar Trump restaurants and hotels from serving government officials, force the president to establish a blind trust for his businesses, and require disclosure to put potential conflicts of interest under the public glare.

U.S. District Judge George Daniels initially dismissed the lawsuit, ruling that only Congress had the power to enforce the emoluments clause.

Leval, who like Daniels was appointed by Bill Clinton, disagreed with the lower court’s logic that it would be unknowable to determine why government officials patronize the president’s businesses.

“The Trump restaurants and hotels are offering something that nobody else can offer,” Leval remarked at oral arguments last October, identifying this as the ability to “line the pockets of the president.”

The notion that government officials might go to Trump establishments for more innocuous reasons did not sway the Second Circuit majority.

“We also note that there is no logic to the district court’s proposition that, because some government patrons might be drawn to Trump establishments by curiosity, this means that none of them patronize his establishments in the hope of currying the President’s favor by enriching him,” a footnote of the opinion states.

“The likelihood that some choices of government representatives will be influenced by other factors such as general curiosity in no way undermines Plaintiffs’ altogether plausible allegation of a substantial likelihood that, in some significant number of instances, government officials will choose Trump hotels and restaurants in the hope that spending their dollars at Trump establishments will influence the President in their favor in governmental decisions,” it states.

Leval was joined in the majority by U.S. Circuit Judge Christopher Droney, a Barack Obama appointee.

U.S. Circuit Judge John Walker, a George H.W. Bush appointee, objected in a dissent to treating the emoluments clause as “sweeping anti‐corruption provisions.”

“Finally, this case is deeply political and thus finds itself in an area where federal court sought to tread lightly,” Walker wrote in a 25-page dissent. “President Trump was democratically elected by the American people—and he was elected with his business holdings and brand prominence in full view.”

Brushing aside that line of argument as irrelevant, the majority wrote: “While it is certainly possible that these lawsuits are fueled in part by political motivations, we do not understand the significance of that fact.”

The Justice Department declined to comment.

Friday’s ruling falls in the wake of national controversy over the U.S. Air Force’s repeated bookings at Trump Turnberry, the president’s Scottish resort. Politico reported on Thursday that the preliminary results of the Air Force’s internal review found that the service has put crews up at the resort as many as 40 times since 2015. Vice President Mike Pence also stayed at Trump’s Doonbeg resort.

In July, the Richmond, Virginia-based Fourth Circuit dismissed a similar emoluments challenge by attorneys general for Maryland and the District of Columbia, setting up the likelihood of a brewing Supreme Court battle.

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