Donald Trump

Second Circuit Refuses to Take Emoluments Case En Banc

At least four judges (and one senior judge) believe the standing question is worthy of en banc review. Will the Supreme Court think it's worth certiorari?

|The Volokh Conspiracy |

The U.S. Court of Appeals for the Second Circuit denied a petition for rehearing en banc in CREW v. Trump, one of three ongoing suits alleging that President Donald Trump is violating the Constitution's foreign emoluments clause.

Judges Cabranes and Menashi each wrote opinions dissenting from the denial, the latter joined by Judges Livingson and Sullivan. Senior Judge Walker, who was not eligible to participate in the vote, published a "statement with respect to the denial of rehearing en banc," explaining why he thinks the case is en banc worthy. Judge Leval also filed an opinion, defending the court's decision not to grant en banc review. Judge Park did not participate. So of the twelve judges participating, at least four supported en banc rehearing. (We are not entirely sure of the number, as the court does not release the vote tally.)

The Second Circuit's decision is not too surprising, even if only because the court is notoriously stingy about granting en banc review. That said, I think this case certainly staisfies the "question of exceptional importance" threshold, as Judge Cabranes argued in his opinion. I also agree with Judge Menashi that the three-judge panel's decision that the CREW plainiffs have standing was incorrect, for reasons I detailed these three posts. As Judge Menashi notes, the panel opinion adopted a particularly loose approach to competitor standing, but apparently a majority of his colleagues did not agree.

I suspect that the Trump Administration will file a petition for certiorari. There are three emoluments cases potentially ready for Supreme Court review, and I would think the Court would take at least one of them. Then again, depending on the outcome of the election, the cases could be moot before the Supreme Court has the opportunity to decide one.

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  1. “It puts the emoluments on its skin, or else it gets the hose again.”

    1. You’ve made that joke a few times, and I laugh every time.

  2. Can a President openly and unashamedly use his office to enrich himself? If the Emoluments Clause doesn’t apply here, then the answer is “Yes!”

    1. You mean like the Clintons did? And as Obama did? They both came out of the Presidency considerably wealthier than mere salary alone would predict.

      1. Writing best selling books will do that. Comparing it to the open corruption of the current WH occupant takes some awfully tortured reasoning.

        1. “Writing best selling books will do that.”

          And all the books sales were in the US, right?

          1. Just to be clear, that’s irrelevant. The foreign emoluments clause applies to foreign governments, not foreign individuals.

        2. Writing best selling books will do that.

          Otherwise known as signing your name to a best-selling book someone else ghostwrote. But no worries — I’m sure the book would have sold just as many copies had the ghostwriter published it, and thus there was no excess profit solely from the name on the front cover.

          1. Trump has ghostwriters (and ghost-test-takers). People who can string a coherent sentence together don’t need them.

            1. People who can string a coherent sentence together don’t need them.

              Alrighty then. Folding that into your original point, on which side of the Emoluments Clause would you put people who apparently can’t string a coherent sentence together nonetheless materially profiting from applying their names to “best selling books” while in office?

              1. The only recent president who can’t string a coherent sentence together is Trump, and I don’t recall him authoring any books, ghost-written or otherwise, while in office. But if Trump is who you’re referring to, I’d say he’s on the wrong side of the Emoluments Clause, just not on account of any book authoring activity.

                1. Tony Schwartz says he is no longer willing to sign copies of “The Art of the Deal,” but when he can’t avoid it he writes “Do not read this book, and do not behave like this book’s subject.”

      2. How about Gerry Ford, who was basically honest.
        As Congressman, he lived on $5/week — $26/week today — and he wound up a millionaire.

    2. Can the State Department buy thousands of copies of Trump’s book “Art of the Deal” so that it can openly display them in embassies, and give them away as needed?

      Would that violate the Emoluments Clause?

      1. Is the book still in print?

        1. Yes it is.

  3. Wow this is a weak case.

    This isn’t even a decision about the the case itself.

    It’s a decision on whether the plaintiffs have standing in the first place and that the entire thing should be dismissed. And it’s really weak in terms of standing.

    1. Here’s how it’s weak in terms of standing. Let’s use a separate example.

      Barack Obama has a book. Because he was President, a foreign government bought a copy of his book. Because they bought HIS book, they didn’t potentially buy my book, so I have standing to sue the President.

      1. It’s not a great case, but I don’t think it’s quite as weak as you’re suggesting. Hosting events is more of a zero-sum proposition than buying a book. You can easily buy two books, but it’s unusual if not impossible to host an event at two locations.

        1. Maybe better from a standing point of view, but worse from a verdict point of view: Political books are routinely bought only because of the author, (I’ve still got some campaign books from the LP lying around.) but you’re not likely to book a venue for an event you weren’t going to hold to begin with.

          The problem here is that just getting paid for ordinary commercial transactions simply isn’t an emolument, which is an award given to somebody holding an office, supplementing their official salary.

          If you could establish that the product was being paid for well over the going rate, or being purchased and not delivered, you’d have a case for laundered bribes, but not an emolument.

  4. The Second Circuit is by far the stingiest of circuits at taking up cases en banc. It might be easier to get a cert. grant from SCOTUS than en banc review in the Second.

  5. So how exactly is the emoluments clause to be enforced?

    1. Some people would probably argue that you should rely on impeachment. Then again, based on recent experience, those same people would probably argue that violating the emoluments clause isn’t a high crime or misdemeanor.

  6. If no one has enforced the emoluments clause in 220+ years, why start now?

    1. Orange Man Bad. Didn’t you see the DNC tonight? We are basically living with Hitler in the White House.

      1. Fortunately it’s the version of Hitler that largely respects federalism, obeys hostile court orders, and doesn’t do squat to people who publicly disrespect him.

        But evil festers in his heart, of that be sure!

    2. Because it’s in the Constitution?

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