January 23, 2018

"It is not like this case is about national security or corruption. Right?"

52 comments:

traditionalguy said...

What's an emolument? Not another Russian Bot attack.

MadisonMan said...

Questions that nobody is asking. I miss that column from the Wall Street Journal.

But at least someone is asking it.

Mac McConnell said...

Why would J. Crew sue Trump? Did he purchase skinny jeans, wear them once and return them "soiled".

traditionalguy said...

OK, an Emolument is a gift from a head of state to an American official ...like getting a $700,000 Speaker's fee given from Putin to your spouse or the usual billion dollars a year spread around to serving American officials by a Saudi Princes using a Hungarian Nazi.

Hillary would say that thinking anyone can buy her that cheap is an insult: Arkansas Rates apply.

Quaestor said...

What's an emolument? Not another Russian Bot attack.

I think it's something the Russians spread on bananas to ease the insertion.

Roughcoat said...

Well done, Quaestor. Well done indeed.

Bay Area Guy said...

I'm sure Professor Lawrence "4-step" Lessig is feverishly working on the appellate strategy as we speak:

Step 1: Impeach and remove Judge Daniels
Step 2: appoint and confirm new judge
Step 3: ???????
Step 4: reverse the dismissal of the case!

Jersey Fled said...

Pretty funny. Court ruled that the plaintiffs 1) lacked standing, and 2) could not show that a valid claim existed under the Emoluments clause.

Where was the helpful Hawaiian judge when when CREW needed him? Can't trust those NY judges.

MaxedOutMama said...

Obviously they intend to gin up another such lawsuit to be filed in the Ninth Circuit.

Considering that Washington and Jefferson, for example, were actively running their plantation businesses and certainly selling for export, it is hard to show that either Emoluments Clause has any applicability to business on the open market.

But in the Ninth, the lens is different.

JPS said...

Gosh, this post brings back memories - of when every single liberal I know suddenly became an expert on the Emoluments Clause.

It was as though an alert had gone out, and they all mobilized.

Jake said...

Isn’t the deadline to file a notice of appeal 30 days?

GRW3 said...

I think the wind goes out of the sail when you look at the Trump financials that show being President is costing him money. Unlike the typical high level politico who become a multi-millionaire on a government salary.

Tommy Duncan said...

Blogger JPS said...

"Gosh, this post brings back memories - of when every single liberal I know suddenly became an expert on the Emoluments Clause."

"It was as though an alert had gone out, and they all mobilized."


It was a though a talking points memo had gone out, and they all copied and pasted.

Where are the usual suspects claiming there is a smoking gun and Trump will be in big trouble (impeached!!) soon?

Tim in Vermont said...

Where were these people when Hillary Rodham Clinton was taking hundreds of millions?

Michael Guarino said...

"I think the wind goes out of the sail when you look at the Trump financials that show being President is costing him money. Unlike the typical high level politico who become a multi-millionaire on a government salary."

Which anyone with two neurons to rub together could anticipate was going to happen if he won the election. (For those who still can't keep up, this implies Trump also knew winning the election was not in his financial interest while running.)

Seth Barrett Tillman said...

it is great to be here (on Althouse) in 2018.

Seth in Ireland

Chuck said...

I like the decision by Judge Daniels. But it didn't reach any of the merits on the Emoluments Clause. It was dismissed because the plaintiffs lacked standing.

My guess is that Congress would have standing to sue; and so Trump's fate with regard to this issue rests on Republicans holding Congressional majorities. A cause that was notably not helped by running Roy Moore in the Alabama special election.

EDH said...

Lobsters actually have two emoluments claws each, and we should organize our own societies accordingly.

Jersey Fled said...

Chuck

You need to read the actual opinion. You can Google it. He went into considerable detail as to why the Emoluments Clause did not apply and dimissed the suit on that basis as well as standing.

Seth Barrett Tillman said...

Chuck, take comfort--Daniels dismissed on standing. seth

Birches said...

That was a very interesting set of people to tag. Honestly, I don't know what to make of that Twitter feed, but stable is definitely not a word I would choose.

Birches said...

Oh, hello there!

Do you think the plaintiffs are throwing the lawsuit for the Trump team?

Khesanh 0802 said...

I knew that the opportunity to post the following would come on Althouse today. "For a couple weeks now, I've been saying that DACA is not a bargaining chip, it's a bait. In fact, you just saw who Trump used it to bait the Dems into a Banzai Charge on his most heavily fortified position". A long list of reasons why Trump, who Chuck believes is an idiot, just rescued the R's from the "Blue Wave", won the immigration fight, and exploded the heads of the D base. Well worth the read.

Darrell said...

Let me write the majority SCOTUS opinion--

"FFS."

Bushman of the Kohlrabi said...

Where were these people when Hillary Rodham Clinton was taking hundreds of millions?

They were busy paying her.

Chuck said...

Jersey Fled said...
Chuck

You need to read the actual opinion. You can Google it. He went into considerable detail as to why the Emoluments Clause did not apply and dimissed the suit on that basis as well as standing.

I said I liked the opinion. Because I had already read the opinion. Footnote 1, Page 2; because the Court decided the matter on standing under FRCP 12(b)(1), it did not reach the merits of whether the Plaintiffs stated a cause of action under the Emoluments Clause, or whether the alleged payments constituted emoluments at all, and so no decision was reached of the DoJ's 12(b)(6) motion.

There's quite a lot of good dicta. But it is just that; and from a District Court at that.

Bruce Hayden said...

"For a couple weeks now, I've been saying that DACA is not a bargaining chip, it's a bait. In fact, you just saw who Trump used it to bait the Dems into a Banzai Charge on his most heavily fortified position".

Ditto here. Read the article and thought it interesting. Not really sure if Trump is playing 3D chess while the Dems are playing checkers, or if he just adapts and evolves at an insane rate. My guess is a combination of the two. Taxes, migration, infrastructure seem intentionally sequenced, and somewhat timed. Tax reform came first, because it takes longer to kick in. Except that it is looking like even a lot of Republicans underestimated how potent it would be. If the stock market bubble doesn’t pop, I expect the economy to be roaring into the election. I think that immigration is an unforced error on the part of the Dems. Or at least their timing of it. Much better, I think, to be able to use in in ginning up turnout in Nov, promising their base that a Dem Congress (or at least a Dem House) would get them what they want. Now, they are going to have to eat an end to chain migration and the visa lottery, to get DACA relief (I think the relative power of the two sides will be readable from whether the Dreamers get a path to citizenship, green cards, or just not deported). Plus some wall funding, which I expect to start being built shortly, so Trump will be able to point to it in Nov. infrastructure this summer should crank the #RedTideRising up into overdrive.

The thing that that author wasn’t factoring in is the unfolding DoJ/FBI corruption scandal. As most everyone here knows by now, it is very highly likely that these agencies not only illegally spied on the opposition party Presidential candidate, but it seemed to almost kick into overdrive after their candidate lost, but they also conspired to swing the election by obstructing and subverting Justice. Government employees, paid by the citizens whom they were duping, and mostly all but unfireable because of civil service protections. Want to scare a lot of Trump voters into showing up and voting Republican? The promise of impeacment is bad enough, but the idea of Adam Schiff taking over the investigation is downright terrifying luckily, by the election, there should be plenty of footage of him acting badly to protect the Deep State traitors.

Yancey Ward said...

From Chuckles:

"My guess is that Congress would have standing to sue; and so Trump's fate with regard to this issue rests on Republicans holding Congressional majorities."

This is irrelevant because Congress wouldn't have to sue in court to try, adjudicate, or enforce the clause- it is already the prosecutor, jury, and executive in the matter.

Chuck said...

Khesanh 0802 said...
I knew that the opportunity to post the following would come on Althouse today. "For a couple weeks now, I've been saying that DACA is not a bargaining chip, it's a bait. In fact, you just saw who Trump used it to bait the Dems into a Banzai Charge on his most heavily fortified position". A long list of reasons why Trump, who Chuck believes is an idiot, just rescued the R's from the "Blue Wave", won the immigration fight, and exploded the heads of the D base. Well worth the read.

Recall that like the blogger to whom you linked, I am in favor of a DACA fix that denies citizenship to DACA recipients. It makes me a real hard-core immigration hawk, I think.

But then square that, with the mind-numbing performance of Trump in front of tv cameras on January 9. Where he was talking about agreeing with "comprehensive" immigration reform, and not vetoing anything that Congress came up with, and needing to be reined in by Kevin McCarthy.

Althouse loved that performance because it supposedly showed that Trump was in control of his language and his intellect and his temperament and, uh, the facts. If you are right, and if Althouse is also correct that the meeting was not an unhinged Trump, then what Trump was saying on January 9 was completely mendacious bullshit; duplicity on a scale so bland and so monstrous that it's almost hard to describe.

Bruce Hayden said...

“There's quite a lot of good dicta. But it is just that; and from a District Court at that.”

I have always wondered why courts so very often throw in a bunch of orbiter dicta. Sometimes, when the Supreme Court does it, you can sneak it in your arguments anyway. Indeed, some major chains of precedent start as dicta, or even dissenting opinions. And maybe sometimes a judge is telling a party to not bother coming back, even if they get the technicalities straightened out (like with standing here), because they will just piss off the judge. And, then, maybe some judges or their clerks, may not have remembered their first weeks in law school. Still, it is a big waste, and law school would be easier if you didn’t spend so much of your time reading irrelevant dicta, separating the rare wheat kernel from all the chaff.

Chuck said...

Yancey Ward said...
From Chuckles:

"My guess is that Congress would have standing to sue; and so Trump's fate with regard to this issue rests on Republicans holding Congressional majorities."

This is irrelevant because Congress wouldn't have to sue in court to try, adjudicate, or enforce the clause- it is already the prosecutor, jury, and executive in the matter.

Do you mean to say that Congress' remedy is to impeach the President for a violation of the Emoluments Clause? Or to censure the president?

Because a bare majority of the House could pass articles of impeachment, or a censure motion, but it takes a supermajority of the Senate to convict in an impeachment trial.

On the other hand, a bare majority of the House could authorize a federal lawsuit. And then only convince a federal judge, for some civil relief.

traditionalguy said...

The massively corrupt FBI/DOJ nexus is starting to emerge in Text messages and e-mails being COVERED UP by Comey and Mueller's Bureau of Cover ups.

That evil Secret Society inside the FBI spent 5 months making serious plans to assassinate Trump's family. No wonder Trump wants Melania and Baron to stay home from the Swiss Gold hoarding, heart of darkness coven in Davos.

Bruce Hayden said...

@Chuck - that is my understanding, that Congress can sue in addition to impeachment, as a remedy.

Yancey Ward said...

Chuck,

The president can't be disciplined by a court in such a case- that discipline always goes back to Congress. I always lose respect for Congress when it sues a president in federal court. It is pointless, and is, at best, a political dodge by a Congress not really living up to its responsibilities.

Chuck said...

Yancey Ward said...
Chuck,

The president can't be disciplined by a court in such a case- that discipline always goes back to Congress. I always lose respect for Congress when it sues a president in federal court. It is pointless, and is, at best, a political dodge by a Congress not really living up to its responsibilities.


There have been a variety of cases in which the President of the United States has been sued civilly in federal courts. U.S. v. Nixon (the Watergate tapes case); Clinton v. Jones (Bill Clinton's sexual misconduct/troopergate/deposition case); and most particularly for our purposes, House of Representatives v. Burwell ("The House has standing to redress (a justiciable) injury in federal court.")

Chuck said...

btw, Yancey Ward; you do realize, don't you, that the Republican-majority house was the Plaintiff in House v. Burwell, which was of course one of the many legal attacks on Obamacare?

Earnest Prole said...

My guess is that Congress would have standing to sue; and so Trump's fate with regard to this issue rests on Republicans holding Congressional majorities.

You lack basic literacy in the Emoluments Clause of the Constitution, which makes Congress the sole judge of whether the President is in violation.

SDaly said...

The time to file a notice of appeal is 60 days in that case, the plaintiffs are probably crafting that 1-page document with exquisite care.

Bad Lieutenant said...


Earnest Prole said...
My guess is that Congress would have standing to sue; and so Trump's fate with regard to this issue rests on Republicans holding Congressional majorities.

You lack basic literacy in the Emoluments Clause of the Constitution, which makes Congress the sole judge of whether the President is in violation.

1/23/18, 2:23 PM


I do enjoy Chuck taking the shiv in an area he purports to know well, and you're just the guy to do it.

But, since I am not a lawyer, I have no shame in confessing my lack of basic literacy in the emoluments clause, so I am therefore confused how, if this question is the sole province of Congress, what there was doing a case in court at all, and why all those lawprofs seemed to think it was legit.

However, feel free to keep on sticking it to our friend Chuck. Do you think Ann liked the porno?

Birkel said...

I like our resident fopdoodle best when it criticizes Trump for playing politics and then standing on principle. Nothing says LLR like pretending not to understand politics.

Trump manifestly controlled the immigration debate, sacrificing nothing while showing Democrats ineffectual in their #SchumerShutdown and causing the Radical Left to attack the pretending-to-be-centrist Left.

In what world could the politics have been played better?

But the fopdoodle persists.

John Pickering said...

Hey, happened to see this one:

WASHINGTON — Attorney General Jeff Sessions was questioned for several hours last week as part of the special counsel investigation, and the former F.B.I. director, James B. Comey, was interviewed by the office last year, according to two people briefed on the meeting.

The interview with Mr. Sessions marked the first time that investigators for the special counsel, Robert S. Mueller III, are known to have questioned a member of President Trump’s cabinet.

The interview with Mr. Comey focused on a series of memos he wrote about his interactions with Mr. Trump that unnerved Mr. Comey. In one memo, Mr. Comey said that Mr. Trump had asked him to end the F.B.I.’s investigation into the former national security adviser, Michael T. Flynn.

After the president’s request was revealed publicly, the deputy attorney general, Rod J. Rosenstein, appointed Mr. Mueller as the special counsel to lead the Russia investigation and examine whether the president obstructed justice.

Seeing Red said...

Schumer - wall money is off the table.

Seeing Red said...

I don’t think this is going to end well for the FBI.

Birkel said...

Seeing Red:

Schumer admits in less than three days he lied about wall money?

Where is my shocked face?

Khesanh 0802 said...

Chuck, you need to spend more time reflecting on actions and not words. Since you claim to be a lawyer I guess that is expecting too much.

Gahrie said...

You lack basic literacy in the Emoluments Clause of the Constitution, which makes Congress the sole judge of whether the President is in violation.

Much as I hate to defend Chuckles...this is wrong. Article 1, Section 9, Clause 8 reads:
"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

This gives Congress the sole right to permit Americans to receive (among other things) emoluments, but says nothing about judicial jurisdiction.

There has been almost no case law on point either, so they aren't precedents to guide us. I suggest that it is an open question as to who has standing to bring such a case.

Tim in Vermont said...

Near as I can figure, it’s just a fig leaf for impeachment. If it was a Democrat billionaire in office, you wouldn’t hear any more about this than you heard about it when Hillary was collecting all of that filthy lucre as SoS, or using Bill for a bag man.

Still will take 60 votes in the Senate to remove, and they still aren’t coming.

Tim in Vermont said...

Since the Democrats already demanded a vote in Congress on the issue, and that vote was denied, it looks like approval to me.

The Godfather said...

@Althouse: Thanks for reminding me of the CREW case. The opinion was very good. Yes, lawyers can concoct reasons why it's not definitive (if you learn anything in law school, you learn how to "distinguish" unfavorable cases), but to any fair-minded person it is a powerful refutation of the foreign emoluments argument. I was interested that the judge was a Clinton appointee. We've gotten so accustomed to seeing judges appointed by Democrat Presidents making-up-the-law-as-they-go-along to further "the Resistance", that it's really refreshing to see that judicial responsibility isn't entirely dead.

Earnest Prole said...

Gahrie: Thanks for making it easy by quoting the text. You'll note that (as with the removal of the President) the Constitution gives Congress the sole role in policing emoluments. The Supreme Court has religiously avoided interposing itself in these kinds of Constitutional conflicts.

richard mcenroe said...

Chuck Schumer got $500k from Immigration advocates the day before the shutdown. Does that count as an emolument?

Earnest Prole said...

if this question is the sole province of Congress, what there was doing a case in court at all, and why all those lawprofs seemed to think it was legit.

I didn't mean to imply it wouldn't be litigated. Lawprofs are even more inventive than trial lawyers at crafting wacky legal theories, and lower-level judges sometimes listen to them, but the Supreme Court has been exceedingly conservative when ruling (or more precisely, choosing not to rule) on matters relating to the Articles of the Constitution. In this case, should it ever reach them, I'd lay 100–1 odds they'd say "Congress has full power, under the Emoluments and Impeachment Clauses of the Constitution, to hold the President accountable, should it choose to do so, and we will not interpose ourselves on that relationship." You read it here first.