CREW v. Trump

Citizens for Responsibility and Ethics in Washington v. Trump is a case pending before the United States District Court for the Southern District of New York. The plaintiffs,[2][3] watchdog group Citizens for Responsibility and Ethics in Washington (CREW), hotel and restaurant owner Eric Goode, an association of restaurants known as ROC United, and an Embassy Row hotel event booker named Jill Phaneuf allege that the defendant, President Donald Trump, is in violation of the Foreign Emoluments Clause, a constitutional provision that bars the president or any other federal official from taking gifts or payments from foreign governments. CREW filed its complaint on January 23, 2017, shortly after Trump was inaugurated as president. An amended complaint, adding the hotel and restaurant industry plaintiffs, was filed on April 18, 2017.[4] A second amended complaint was filed on May 10, 2017.[5] CREW is represented by several prominent lawyers and legal scholars in the case.[6][7][8]

Citizens for Responsibility and Ethics in Washington v. Trump
CourtUnited States Court of Appeals for the Second Circuit
Full case nameCitizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers United, Inc., Jill Phaneuf, and Eric Goode, Plaintiffs-Appellants, v. Donald J. Trump, in his official capacity as President of the United States of America, Defendant-Appellee.
ArguedOctober 30 2018
DecidedSeptember 13 2019
Case history
Prior action(s)276 F. Supp. 3d 174 (S.D.N.Y. 2018)
Holding
Plaintiffs have standing to bring an Emoluments Clause suit against President Donald Trump.[1]
Court membership
Judge(s) sittingPierre N. Leval, Christopher F. Droney, John M. Walker, Jr.[1]
Case opinions
MajorityLeval, joined by Droney
DissentWalker
CREW v. Trump complaint

U.S. District Judge George B. Daniels dismissed the case on December 21, 2017, holding that plaintiffs lacked standing.[9][10] On appeal, the U.S. Court of Appeals for the Second Circuit reversed the dismissal, reinstated the suit, and remanded the case to the district court for further proceedings.[1] In January 2021, the U.S. Supreme Court instructed the lower courts to dismiss the case (and a similar case brought by Maryland and the District of Columbia) as moot, because Trump was no longer president.[11]

Background

Citizens for Responsibility and Ethics in Washington stated that because Trump-owned buildings take in rent, room rentals and other payments from foreign governments, the president has breached the Foreign Emoluments Clause. The Constitution says that "no Person holding any Office of Profit or Trust under the United States, 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."[7] The case also includes a claim under the Domestic Emoluments Clause.

An Emoluments Clause lawsuit directed at a sitting President has never been tested in court, and there is little judicial precedent in this area of constitutional law. The Clause is, however, the subject of a considerable body of precedent from the Justice Department's Office of Legal Counsel and the Office of the Comptroller General. The plaintiffs are asking for an injunction and declaratory judgment directed at President Trump requiring that he cease violations of the Emoluments Clauses. On January 23, 2017, after the action was filed in U.S. District Court, Trump rejected the arguments underlying the lawsuit as "Without merit," and "Totally without merit" during his morning press conference at the White House.[12][13]

CREW is represented in the suit by "a group comprised of former White House ethics lawyers, constitutional scholars, and Supreme Court litigators,"[13] including constitutional law professor Laurence H. Tribe of Harvard Law School; Supreme Court litigator Deepak Gupta of Gupta Wessler PLLC; Erwin Chemerinsky, the dean of the University of California, Berkeley School of Law; Richard Painter, law professor at the University of Minnesota and chief ethics lawyer in the George W. Bush administration; and Zephyr Teachout of Fordham Law School.[6] The United States Department of Justice represents Trump.[7]

Quotes from second amended complaint

Defendant has violated the Constitution since the opening moments of his presidency and is poised to do so continually for the duration of his administration. Specifically, Defendant has committed and will commit violations of both the Foreign Emoluments Clause and the Domestic Emoluments Clause, involving at least: (a) leases held by foreign-government-owned entities in New York's Trump Tower; (b) room reservations, restaurant purchases, the use of facilities, and the purchase of other services and goods by foreign governments and diplomats, state governments, and federal agencies, at Defendant's Washington, D.C. hotel and restaurant; (c) hotel stays, property leases, restaurant purchases, and other business transactions tied to foreign governments, state governments, and federal agencies at other domestic and international establishments owned, operated, or licensed by Defendant; (d) property interests or other business dealings tied to foreign governments in numerous other countries; (e) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program "The Apprentice" and its spinoffs; and (f) continuation of the General Services Administration lease for Defendant’s Washington, D.C. hotel despite Defendant's breach, and potential provision of federal tax credits in connection with the same property.[14]

District court proceedings

President Trump filed a motion to dismiss on June 9, 2017.[15] on the grounds that the plaintiffs had no right to sue[16] and that the described conduct was not illegal.[17] A response to the motion to dismiss was filed on August 4, 2017, with a DOJ reply due by September 22, 2017.[18] A full answer from DOJ lawyers to the facts alleged in the complaint was due on August 11, 2017.[19] Oral arguments were expected October 18, 2017.[20]

On December 21, 2017, the motion to dismiss was granted; Judge George B. Daniels held that plaintiffs lacked standing.[10]

Second Circuit proceedings

On February 16, 2018, the dismissal of the suit was appealed by CREW,[21] primarily on an economically-informed theory of emolument-related injury to competitors,[22] with all briefs filed by both parties by June 27. Deepak Gupta of Gupta Wessler presented oral argument for the plaintiffs before a three-judge panel of the Second Circuit on October 30, 2018. On September 13, 2019, the U.S. Court of Appeals for the Second Circuit in New York (in a 2 to 1 decision) reinstated the lawsuit and sent it back to the lower court so that the case can move forward.[1] The appellate decision was critical of the July 2019 appellate decision in D.C. and Maryland v. Trump[23][24] which is currently scheduled for en banc rehearing.[25]

In January 2021, the U.S. Supreme Court instructed the lower courts to dismiss the case (and a similar case brought by Maryland and the District of Columbia) as moot), because Trump was no longer president.[11]

See also

References
  1. Sharon LaFraniere, U.S. Appeals Court Reinstates Emoluments Case Against Trump, New York Times (September 13, 2019).
  2. "House Democrats have oversight investigation plans far beyond Russia probe". NBC News. Retrieved 2018-12-16.
  3. Samuels, Brett (2018-05-16). "Ethics watchdog: Trump should have disclosed Cohen payment last year". TheHill. Retrieved 2018-12-16.
  4. "Lawsuit accusing Trump of violating the Constitution just expanded". Reuters. 2017-04-18. Archived from the original on 2017-04-21. LaFraniere, Sharon (2017-04-18). "Watchdog Group Expands Lawsuit Against Trump". New York Times. Retrieved 2017-06-11.
  5. "CREW v. Trump Adds New Plaintiff" (Press release). Citizens for Responsibility and Ethics in Washington. 2017-05-10. Retrieved 2017-06-10.
  6. Complaint, Citizens for Responsibility and Ethics in Washington, No. 1:17-cv-00458 (S.D.N.Y. Jan. 23, 2017)
  7. Fahrenthold, David A.; O'Connell, Jonathan (January 22, 2017). "Liberal watchdog group sues Trump, alleging he violated constitutional ban". Washington Post.
  8. David A. Fahrenthold; Jonathan O'Connell (January 23, 2017). "What is the 'Emoluments Clause'? Does it apply to President Trump?". Washington Post.
  9. "Judge dismisses lawsuit alleging Trump violated Constitution". December 21, 2017.
  10. Citizens for Responsibility and Ethics in Washington v. Trump, 17 Civ. 458 (S.D.N.Y. Dec. 21, 2017).
  11. de Vogue, Ariane; Cole, Devan (25 January 2021). "Supreme Court dismisses emoluments cases against Trump". CNN.
  12. "[UPDATE] CREW Sues Trump Over Emoluments" (Press release). Citizens for Responsibility and Ethics in Washington. January 23, 2017.
  13. Chris Riback (January 23, 2017). "Why Trump's business conflicts can't—and won't—just be swept aside". CNBC.
  14. Citizens for Responsibility and Ethics in Washington (2017-05-10). "Second Amended Complaint, Docket 28" (PDF).
  15. "Copy of Docket". Retrieved 2017-06-12.
  16. Geewax, Marilyn (2017-06-09). "Trump Administration Calls For Lawsuit About His Businesses To Be Dismissed". NPR. Retrieved 2017-06-10.
  17. Smith, Allan (2017-06-10). "Justice Department argues it's fine for Trump to take payments from foreign governments, citing George Washington". Business Insider. Retrieved 2017-06-10.
  18. "Order" (PDF), CREW v. Trump (Court Filing), S.D.N.Y., No. 1:17-cv-00458 (Docket 47), 2017-07-07, retrieved 2017-08-06 – via Recap (PACER current docket view)
  19. "Order" (PDF), CREW v. Trump (Court Filing), S.D.N.Y., No. 1:17-cv-00458 (Docket 29), 2017-05-11, retrieved 2017-06-12 – via Recap (PACER current docket view)
  20. Beavers, Olivia (October 15, 2017). "Oral arguments this week in lawsuit against Trump over Emoluments Clause". The Hill. Retrieved 16 October 2017.
  21. "Notice Of Appeal Filed In Emoluments Case" (Press release). Washington: Citizens for Responsibility and Ethics in Washington. 2018-02-16. Retrieved 2018-10-10.
  22. Brief of Plaintiffs-Appellants, filed April 24, 2018, 2d Cir. Docket 18-0474, Document 27
  23. Mystal, Elie (September 16, 2019). "Emoluments Are Back On The Table: Second Circuit reinstates emoluments lawsuit against Trump". Above the Law. Retrieved October 19, 2019. The Second Circuit’s opinion then goes into a point-by-point take down of the Fourth Circuit opinion.
  24. Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers United, Inc., Jill Phaneuf, and Eric Goode v. Donald J. Trump, pp.30-45 (2nd Cir. September 13, 2019) ("The Fourth Circuit expressed skepticism as to “why [the plaintiffs] came to the court for relief in the first place,” implying that their motivation was political and that this cast doubt on the federal court’s jurisdiction. While it is certainly possible that these lawsuits are fueled in part by political motivations, we do not understand the significance of that fact. But while the existence of a political motivation for a lawsuit does not supply standing, nor does it defeat standing. Whether a lawsuit has political motivations is irrelevant to these determinative issues. [citations omitted]").Text
  25. Weiss, Debra Cassens (October 15, 2019). "4th Circuit to reconsider claim that Trump is violating the emoluments clause". ABA Journal. Retrieved October 19, 2019.
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