President Donald Trump notched a little-noticed win on Friday in his bid to fight off lawsuits accusing him of violating the Constitution’s Emoluments Clause when a D.C. appeals court suggested that a lower court had erred in denying Trump the opportunity for an early appeal in the case.
The case is procedurally complicated, but the upshot is a win for Trump in the case brought by Democratic members of Congress.
Trump was asking the appeals court to order the lower court to dismiss the case entirely, which would have had the additional effect of cutting off discovery into his personal finances. Additionally, Trump was asking the appeals court to order the lower court to allow an immediate appeal of its decision not to dismiss the case.
In response, the appeals court did not grant Trump exactly what he was seeking.
But, in denying the President’s bid for an immediate halt in the case, the appeals court said that U.S. District Judge Emmett Sullivan had abused his discretion in not allowing Trump to immediately appeal the denial of his motion to dismiss the case.
The appeals court stopped short of ordering dismissal of the case, or of ordering Sullivan to grant an expedited appeal. But it ordered Sullivan to reconsider Trump’s motion for an expedited appeal and the motion to pause the case while the appeal proceeds, which Sullivan had also denied.
In doing so, the appeals court strongly signaled which way the decision should go:
“The question of whether the Foreign Emoluments Clause, or other authority gives rise to a cause of action against the President is unsettled, and the standing question arises at the intersection of precedent,” the judges wrote.
Trump had argued in the case that the members of Congress lacked standing to sue him, a question that the appeals court agreed was worth considering. Members of Congress allege that by owning the Trump DC hotel, the President is violating the Emoluments clause of the Constitution by taking profits from foreign government business.
The court went on to say that both the question of whether the Emoluments clause provided Congress with standing to sue and whether precedent allowed it “could be dispositive of this case.”
The appeals court added that for a case with separation-of-powers implications, “those important and open threshold questions of pure law are best resolved conclusively through an expedited interlocutory appeal with focused briefing and oral argument, rather than tentatively through the demanding lens of the mandamus requirement of clear and indisputable error.”
The appeals court did not leave Sullivan much wiggle room as he reconsiders Trump’s motions.
“It appears to this court that the district court abused its discretion by concluding that an immediate appeal would not advance the ultimate termination of the litigation just because discovery and summary judgment briefing could proceed expeditiously,” the appeals court wrote.
The Fourth Circuit court of Appeals threw out a similar case brought by the D.C. and Maryland attorneys general this month, claiming that the state law enforcers lacked standing to bring the lawsuit.
Legal experts told TPM after that decision that Congress has its own enforcement mechanism for stopping the receipt of illegal emoluments — new legislation, or, impeachment.
Read the order here:
This decision isn’t substantive, but could let the Trump regime run out the clock on the emoluments lawsuit.
In any event, it’s increasingly clear that the emoluments clause may literally be so narrowly interpreted as to have no legal import. Trump’s use of his office to take bribes in the form of money laundered via his businesses is the most blatant example of pay to play politics in U.S. history and it seems this isn’t enough for the increasingly right wing judiciary.
The Appeals Court appears to be signaling that it will ultimately rule in Toadglans’ favor so the appeal should be allowed.
Once this country loses the courts as a bulwark against Trumpism, which seems to be happening more and more by the day, we are truly and deeply fucked.
Say hello to the new national flag that you’ll soon be required to honor, with adequate reverence, lest you be sent to a not-a concentration camp.
If the courts fail to protect us, the only remaining option is impeachment. BUT, that should (and will) only occur after investigations and hearings. I do hope the Mueller testimony changes peoples’ minds, as the Democratic leadership in the House seems to rely on public opinion. I’m cautiously optimistic that they will do the right thing in the end.
I’m gathering from all the hub bub that the only means of containing a rogue president is through impeachment or or the electoral process. But the electoral process is corrupted. And the Senate has been captured by right wing extremists. And what if a president won’t step down after being impeached or rejected at the polls? Whether the “founders” wanted it or not, we have, it seems an elected despot, a “king”.
Our system of government is like a coke bottle balanced on it’s mouth. Everything is fine and constitutional crises are avoided so long as there’s no perturbation, as long as no one vibrates the table or floor. If everyone behaves as they should. An unstable equilibrium.
Eventually, after enough perturbations of sufficient magnitude, the bottle will topple into a stable equilibrium, a stable autocracy. Perhaps this is the fate of all democratic republics.
Not to split hairs but he was selected not elected.