End of the Road for the Emoluments Clauses litigation

After four years of litigation, the Supreme Court GVR'd appeals from the 2nd and 4th Circuits "with instructions to dismiss the case as moot."

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On January 23, 2017–only three days after the inauguration–the first Emoluments Clauses case was filed in the Southern District of New York. Four years later, almost to the date, the Supreme Court found this challenge, and a related case from Maryland, were moot.

Readers of this blog have no doubt followed my work on this case with Seth Barrett Tillman. Over the past four years, we filed nearly two dozen briefs in three District Courts, three Circuit Courts, and the Supreme Court. Plus, we wrote many op-eds, blog posts, and gave countless media interviews. I was also able to attend oral arguments in each of the District Courts, and two of the Circuit Courts.

In time, I will have much more to say about these cases. For now, I am grateful that the Supreme Court granted our motion for leave to file amicus briefs. Here are the Supreme Court's first, last, and only words on the Emoluments Clauses:

20-330 TRUMP, PRESIDENT OF U.S. V. CREW, ET AL.

The motion of Scholar Seth Barrett Tillman, et al. for leave to file a brief as amici curiae is granted. The motion of Professor Lawrence A. Hamermesh for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Second Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

20-331 TRUMP, PRESIDENT OF U.S. V. DISTRICT OF COLUMBIA, ET AL.

The motion of Scholar Seth Barrett Tillman, et al. for leave to file a brief as amici curiae is granted. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

NEXT: Changing Litigating Positions at the Solicitor General's Office

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  1. “On January 23, 2021–only three days after the inauguration–the first Emoluments Clauses case was filed in the Southern District of New York”

    The battle to cancel the 2016 election was quickly joined, and an already low level of civility between factions grew deeper from there.

    1. Saying that Trump shouldn’t be able to enrich himself from the Presidency and that the 2016 election should be cancelled are pretty different things.

      Nice try, though.

      1. jb,
        You cannot read without distorting the text by you partisan colored glasses.
        Disaffected D’s upped the ante of the R’s previous “Politics of Nope” and did so by bring suit against DJT and talked about the illegitimacy of Trump’s election from the get-go. And you seriously think that anyone really took Mr Biden’s call of unity seriously? Or is your memory that poor?

        1. Don, whether Trump should be allowed to profiteer from being president is a stand-alone question.

          1. That is true, but one cannot disregard the context and timing of the way the question was asked. If members af congress are in fact so concerned about giving substance to the emoluments clause, clarifying legislation is in order before the next politician with major business interest runs.
            I have no dog in this fight.
            I am interested in seeing the level of cooperation in the Congress increase to at least where it was in the 80’s when I worked for a US Senator

            1. The problem, though, with not “disregarding the context” is that it becomes an excuse to not talk about the immediate problem, which is Trump profiteering from the presidency. Since Trump’s behavior was inexcusable, of course his supporters want to talk about something else instead. But that’s basically just giving Trump a get out of jail card.

              1. If it was a crime prosecute. I don’t see it as a get of of jail free card. Certainly Trumps supporters see a suit on day three as a gross ad hominem attack based on sour grapes at least. Certainly such immediate action helped fuel the fires that Trump was eager to throw more gasoline on. For the next four years we have a steady escalation away from political cooperation.

                I know from experience how congressional politics used to work, not perfectly, but no too badly.
                We are very very far away from that now, and the emoluments suits never had much chance of success and were viewed by Trump republications as merely a provocation and a loud chant of “he’s not my president.”

                1. If it was a crime prosecute.

                  Someone may well do that, but prosecuting Trump for a federal crime was a bit difficult while he was president.

                  1. Is he President anymore?

                    1. No, hence the first 5 words of my comment.

        2. There were plenty of different claims about Trump. Some people thought he won the election illegitimately, e.g., through Russian interference. Some people thought that the electoral college is an illegitimate way of electing a President since it doesn’t reflect the popular will of the people.

          But those claims can be evaluated on their merits separate from the emoluments clause claims. Just because the claims were made at the same time doesn’t mean they should be treated as the same or that one should be dismissed as frivolous just because the other is.

          1. No, I think they should be dismissed as frivolous because the theory behind them means that most Presidents would have violated the emoluments clause, and why did nobody notice?

  2. Over approximately 4 years, “We filed nearly two dozen briefs in three District Courts, three Circuit Courts, and the Supreme Court. Plus, we wrote many op-eds, blog posts, and gave countless media interviews. I was also able to attend oral arguments in each of the District Courts, and two of the Circuit Courts.”

    And, now the case is dismissed as moot. Many rational people might view this as symptomatic of a problem with the system.

    1. Indeed. I would think even dyed-in-the-wool Trump supporters would be disappointed that four years of litigation ends without any resolution whatsoever, meaning they’re going to be starting from square one again when Hunter Biden gets sworn in as president in January 2033.

      1. Why 2033 and not 2029?

        1. I suspect President Harris will want to serve two terms. I look forward to the knock-down drag-out 2032 primaries between Hunter Biden and Chelsea Clinton.

          1. If she waits until just after Biden’s first term is half over to replace him, she could, constitutionally, serve just under 2.5 terms. That’s kind of what I’m anticipating, because she can bank that (slightly under) half term without going to the voters. Just need’s Biden’s cooperation.

        2. He won’t be out of prison until 2031.

      2. “four years of litigation ends without any resolution whatsoever”

        A Trump victory is a resolution. He won, no possible remedy against him.

        1. The case was dismissed as moot because he’s no longer the president. That means we still have no resolution as to whether there can be a viable cause of action based on a purported violation of the Emoluments Clause.

          1. The case was dragged out SO THAT it could be dismissed as moot.

            1. That is a plausible explanation

          2. So if I break the law after 4 years I get out of it? Sweet brb gonna go rob a bank, I think I can hide out in south america for at least 4 years.

            1. Emoluments invloves no crime.

              Although lots of crimes do need to adhere to statue of limitations.

      3. Its a personal victory for Drumpf and a tactical victory for Republicans who get to crow short term that the Dems didn’t get what they wanted. I don’t see how this is a ‘loss’ for them since it all depends on what letter is next to the name of the next person that causes this issue to reemerge from the woodpile.

    2. I certainly would. The Supreme court’s habit of dodging deciding issues put squarely before it by any means available is getting kind of absurd at this point.

      1. It’s ridiculous.

    3. In the case of TRUMP, PRESIDENT OF U.S. V. CREW, ET AL. the SCOTUS declares the trial lawyers the winners, and the American Taxpayers the losers.

    4. It’s moot because supreme court was stacked by Trump. If it had been Biden they would have taken up the case. At least they set the precedent that a President can cash in on his Presidency from foreign powers and foreign corporations. I am guessing that’s probably not a good thing.

      1. No, it was moot because the issue is moot.

      2. They haven’t set any precedent at all, except, “If we don’t want to decide a case, we don’t have to!”

        The case for Trump’s normal business profits being “emoluments” was always a joke, Presidents from Washington on routinely had business empires, and didn’t shut them down while President. And nobody accused them of collecting emoluments on that basis.

        At worst you could have gotten him on bribery charges if you could have demonstrated that the profits were actually laundered money. The emoluments nonsense was an attempt to avoid having to prove that.

        1. The case for Trump’s normal business profits being “emoluments” was always a joke

          In that case it makes perfect sense that a Supreme Court full of conservatives waited until the case was moot, rather than deciding it on the merits…

        2. Trump and foreign leaders pretty clearly altered their behavior based on his business profits, so I don’t see it as much of a joke at all.

          1. If it’s so clear, you should be able to prove it. And what you’re describing is “bribery”, not “emoluments”.

            1. “Emoluments” doesn’t involve a clear quid pro quo, that’s bribery. “Emoluments” is all about what are, essentially, gifts, creating conflicts of interest.

              You want a modern example of emoluments, look to our universities, and China’s “Confucius Institutes”. THOSE are emoluments. Trump isn’t involved in anything similar, he runs businesses, and foreign governments and their employees sometimes do business with them.

              That could be laundered bribes, if you can establish that the payments are above market rates, but you actually have to establish that these foreign governments are paying more than somebody else would.

            2. That’s certainly a unique defense of Trump: “It’s not an emolument, it’s just a bribe!”

              1. No, more, “Even if true it wouldn’t be an emolument, it would be a bribe.” Because I’m not conceding that the charges are true.

                But you should actually prefer to look at this as bribery, because that’s a crime you can go after in court, while it’s too late to go after him on emoluments.

                The down side is that you actually have to prove the transactions WERE bribes. That’s why they were taking the emoluments tack, they thought it got them out of having to prove any sort of quid pro quo or above market remuneration, and just made the mere fact of the transaction unconstitutional.

                But it never made sense from that perspective, because most of our Presidents until recently have had business empires, and didn’t shut them down while in office, and nobody was accusing them on that basis of accepting emoluments, because that’s not what the word refers to.

                1. Your stated definition is not at all clear, and ignores the clear purpose of the clause.

                  And you know very well you cannot go after the President in court.

                  1. I’ve never agreed with the idea that Presidents were constitutionally immune from prosecution during their terms of office, it’s totally atextual. They are as a practical matter immune from federal prosecution, only because the prosecutors work for them. But that’s DOJ policy, not a constitutional rule.

                    But he’s not President anymore, so have at him.

    5. “And, now the case is dismissed as moot. Many rational people might view this as symptomatic of a problem with the system.”

      The case is moot because Trump can no longer collect purported emoluments because he was voted out of office, in part because of perceived corruption stemming from these emoluments.

      You are free to view this as a problem with the system if you wish.

    6. Aye.
      The Court refuse to do what Congress had neglected to do for two centuries.

  3. “On January 23, 2021–only three days after the inauguration–the first Emoluments Clauses case was filed in the Southern District of New York. Four years later” [etc.]

    Blackman is coming to us from 2025!

    Say, can you tell us what stocks will be doing well in 2025?

  4. So, another case of the Supreme court reducing its workload and avoiding settling live controversies by the liberal application of sloth.

  5. I do hope there is a law passed shortly clarifying the requirements for Presidential assets and conflicts. Probably can’t bind the President, but can at least set down some ground rules.

    And also something to add teeth to the Hatch Act.

    1. Not sure why you would find the hatch act relevant, it explicitly excludes the President and Vice President.

      1. The ex-president’s hopelessly compromised children come to mind.

        1. As opposed to the current President’s hopelessly compromised children?

          1. This might surprise you, but Trump’s habit of nepotism and using his position to put his children in high ranking positions is not actually normal.

            That is to say… Biden’s children are not in position to be bound by the Hatch Act. Several of Trump’s were.

            1. “High ranking positions”…

              You mean like “Senior Advisor to the President”? I mean…it’s just an adviser. It’s not like it’s an official cabinet position. But I suppose….

              I mean, imagine if Trump had nominated Ivanka or another family member to chair a task force on National Health Care reform. That would certainly be nepotism, wouldn’t it?

            2. But, you know, if we’re looking at Nepotism….

              I suppose Trump could’ve used nepotism to get Trump Jr into a special Navy Reserve program, and ALSO get age…and drug…waivers. And then Trump could have personally sworn in Trump Jr as a direct commissioned officer in a special White House Ceremony.

              That would be Nepotism, right?

              1. That assumes any of the Trump children would have been willing to serve their country in uniform. Say what you like about Biden, his kids at least served.

                1. Served?!?

                  More like disgraced the uniform.

                  1. All Trump children forever: “Oh, ouch! Me too…bone spurs! Believe me; I would just LOVE to serve my country. Those damned bone spurs. Oooh…ouchie. My poor right foot. I mean, my left foot. No wait!…I mean my right foot after all.”

                    I love it when gutless chickenshit cowards criticize another person’s service.

                    1. After receiving five student deferments, lifeguard and varsity football player Joe Biden was excused from Vietnam-era duty because of “childhood asthma.”

                      Did he take his inhaler to the pool?

                    2. Did he in fact have childhood asthma? When I served in the Navy in the 1970s, asthma was an absolute disqualifier. One of my shipmates was in fact kicked out of the Navy for concealing that he had had childhood asthma, despite his desire to serve.

                  2. Bronze Star Medal and Legion of Merit say some people disagree with your take.

                2. That’s your argument? That Hunter Biden “served”?

                  I suppose. As a direct commission HR officer for the Navy Reserve. For a single month, before he was discharged for drug use.

                  “Service” like that….it’s better not to have served in my opinion.

                  1. Biden had other kids, as it turns out.

                  2. No, my argument is that as tiresome as your what aboutism continues to be, if you’re going to persist with it at least find something that’s factually on point. Find me a situation that’s actually analogous. This one isn’t because the very idea of the Trump children doing anything as unselfish as military service is laughable on its face.

                    1. “Service” like this isn’t actually service.

                      It’s Biden using his political power to get his son a nice plum position in the Navy Reserve, getting the waivers for his age, getting the waivers for his drug use, personally bestowing the commission on him.

                      And then Hunter throws away position by failing a drug test (surprise!) literally a month later.

                      That’s practically the definition of Nepotism.

                    2. Assuming for sake of argument that all of that is true, what does that have to do with Trump?

                      You seem to be under the impression that we can’t talk about anything unless we agree to talk about everything. Which means we can’t talk about anything, which is precisely the reason you keep changing the subject to Biden and the Democrats. Trump’s conduct was indefensible; there is literally nothing you can say that would legitimize what Trump did. Which is the very reason you keep changing the subject.

                      Given that this is a right-leaning group of bloggers, I have no doubt that over the next four years there will be plenty of posts about Biden shenanigans. When there are, feel free to talk about Biden. But assume Biden to be Croesus, the Sherriff of Nottingham and Judas Iscariot all rolled into one; that has nothing to do with Trump.

                    3. Sigh…

                      When someone posts the following

                      “This might surprise you, but Trump’s habit of nepotism and using his position to put his children in high ranking positions is not actually normal.”

                      Then I respond with what all them other presidents have been doing with THEIR adult children and/or spouses, to show…yeah…it is pretty normal actually.

                      Well….

                    4. Driving above the speed limit is normal in the sense that almost all drivers do it, but that’s not going to help you if you get a speeding ticket.

                      But at any rate, you did not respond with what about all those presidents; you responded by singling out Joe Biden and Hillary Clinton. The plural of anecdote is not data. If you actually were going to show that it’s normal, you would have had to say something like this: “We have had 46 presidents, of which X% have engaged in behavior that could be considered nepotism.” In other words, to show what’s normal, you need to do a statistical study. And even if I give you credit for both of your anecdotes (which I’m not inclined to do), that’s 3 out of 46, which isn’t enough to tell us if it’s normal or not. I haven’t done a statistical study either, but my non-scientific hunch is that if you did, you’d find it’s not normal, or at least not as normal as you’re trying to make it out.

                      And I don’t think your HIllary Clinton leading the health care task force is on point either. The problem with nepotism isn’t the mere fact that a family member has been given a task. Rather, it’s when unqualified people are given tasks they aren’t up to, just because they’re family. Yes, Hillary was married to Bill, but she also had sterling credentials in her own right that made her more than qualified to lead the task force to which she’d been assigned. You may not have agreed with her views, but there’s no real doubt she had the qualifications for the job. Bobby Kennedy was a reasonably competent attorney general too.

          2. “As opposed to the current President’s hopelessly compromised children?”

            Which Biden child is replacing Ivanka Trump or Jared Kushner in a nepotism-soaked, qualification-deprived government office?

            1. Give Biden time, clinger.

              1. Don,
                So, instead of having the integrity to acknowledge, “Okay, I went overboard. He hasn’t done that, nor given any indication that he’ll do that in the future.” . . . your pathetic approach is to double-down.

                “My crystal ball tells me that future Biden will be as corrupt and unethical as Pres. Trump was, so I’m assuming that Biden will do the same shit.”

                You have the integrity and character of our ex president. No wonder why you’re such a big fan. (Nicer than my usual observation that you’re simply a whore for the man.)

    2. I hate to join the party late, but is the new standard now “not as bad as Trump.” So long as la familia Biden is less corrupt than la familia Trump, then all is rosy?

      1. I said nothing about Biden at all.

        But separately from that, I’m also not going to listen very hard when the right goes in for bad faith outrage at something they argued was a witch hunt with Trump.

        1. What makes someone a member of “the right?” Does he have to have a membership card? Or is it enough that he once posted something helpful to Trump? Or something in between?

          And will you listen to bad faith defenses of Biden by the left?

          The end result of what you wrote here is that everything is dismissed as partisan blather, and thus any corruption or wrongdoing escapes scrutiny.

          How about we evaluate claims on their merits, and put aside “But Trump” or “But Obama” arguments?

          1. If someone argues it’s the height of impropriety that Biden be held to account for something they wanted to throw the book at Trump for, yeah, I’m not going to listen to that argument either.

            Bad faith is not hard to spot. Calling Biden divisive even as you call him a criminal is an example. So is anyone suddenly crying about emoluments. Or the debt.

            I didn’t bring up Biden at all in my OP, Bored Lawyer, you did. Which is kind of a sign of bad faith that now you complain about it, actually.

            1. Biden was brought up by numerous posters here before I got here. And then others answered some variation of “but Trump.” IMO, these are all silly arguments. We should have one standard for everyone, and call out breaches of those standards when they happen. Even if someone else breached them worse.

              You want to call that bad faith, you are entitled to your opinion.

            2. And BTW, your standards are classic examples of ad hominem. Just saying.

  6. …with instructions to dismiss the case as moot

    To paraphrase Keynes: in the long run, all cases are moot.

  7. For those of us who haven’t been following this saga closely, do the decisions below remain precendential, and if so, what law (if any) do they establish?

    1. The V in GVR stands for vacate. When an opinion is vacated by a higher court, it’s as if it never happened. So no precedent.

      1. Thanks Y. Makes sense to me. On the other hand I noted this report by Buzzfeed today:
        [Karl] Racine and [Brian} Frosh [the Democratic attorneys general of DC and Maryland] released a statement on Monday saying they were proud of the rulings they won in the [MD] district court, which would “help stop anyone else from using the presidency or other federal office for personal financial gain the way that President Trump has over the past four years.” Although the Supreme Court vacated the 4th Circuit opinion last year that allowed the case to go forward, {federal judge Peter] Messitte’s opinion adopting a broad interpretation of “emolument” will remain on the books, they noted; it isn’t precedent that binds any other federal court, but could be cited by lawyers trying to bring a similar case against a president in the future.
        Do you think that saying Trump “us[ed] the presidency . . . for personal financial gain . . . over the past four years” is defamatory? If Trump sued Racine and Frosh, would a court dismiss his suit based on the Messitte opinion?

  8. Does Biden have a book? A rental property? An investment? Any outside source of income that can be claimed to be an emolument?

    1. How many copies of President Obama’s book ended up being purchased for our embassies?

      1. Don’t forget the Domestic Emoluments Clause.
        Unless Obama shipped his memoirs free to state schools and public libraries as President.

    2. I hope Biden takes SCOTUS up on being bribed by foreign powers as moot just to prove a point. Maybe he can open an ice cream shop up in DC and charge $500 a pop for a scoop of ice cream.

      1. Biden is not bending over to pick up nickels from the sidewalk

        If course making sure 10% of Hunters grift is “set aside for the Big Guy”, is kosher.

      2. Doesn’t “fair market value” apply?

  9. Agree the avoidance in this one seems very deliberate.

  10. Despite the supposed “vacate” part of GVR, there actually is a precedent being set here.

    If you drag out a case long enough, the SCOTUS will let you get away with just about anything.

    1. It might depend on the political leaning of the relevant person. Much like the censorship of commenters by the Volokh Conspiracy.

      1. Another, pathetic ride on the hobby horse.

      2. You should try out another butt-hurt salve. The one you’re using isn’t working at all.

        1. I consider exposing right-wing hypocrisy — especially when it involves attempts to advance the Republican platform of backwardness and bigotry — to be worthwhile.

          Clingers may claim to disagree. Mostly because they are disaffected and desperate.

  11. The President can steal all he wants, so long as his lawyers finagle it so that he’s already gone when the motion to dismiss is submitted.

    1. First you need to identify something he stole. They went with “emoluments” because he didn’t steal anything. So they were trying to construe ordinary business profits to be “emoluments”.

  12. What’s the point of accepting amicus briefs for a case that the Court is dismissing as moot? Obviously these briefs aren’t going to be used in the process of deciding the outcome of the case, so there must be some other purpose, but I don’t understand what it is.

    1. An order of events issue?

      1. Seems like they could have just not granted leave to file the briefs, though, and still resolved the order of events without having some random briefs for a case they never really considered.

  13. Lawfare should be criminalized. Until it is, it should be returned. For example, Pelosi, Mueller and Schumer should have been arrested for sedition in their attempt to reverse the election of 2016. Pelosi should have been charged with bribery so she could explain how her net worth went from $80 to $120 million after her election as Speaker.

    1. Exactly. My net worth quadrupled from when Obama took office until now. It can’t be because the stock market recovered, and then went steadily up over those 12 years, nor the huge increase in valuation in Southern California real estate. Pretty good evidence that I’m corrupt.

      Probably a good thing that you’re not in charge of investigations or prosecutions. (Or in charge of any sharp objects.)

      And yes, yes; we all know your response. “Something something, lawyers-bad, something something.”

  14. Lawfare should be criminalized. Until it is, it should be returned. For example, Pelosi, Mueller and Schumer should have been arrested for sedition in their attempt to reverse the election of 2016. Pelosi should have been charged with bribery so she could explain how her net worth went from $80 to $120 million after her election as Speaker.

    Lawfare is what Commies do. Putin charged his political opponent with fraud. The Chinese charged dissidents with corruption.

  15. In case people forgot, here is Trump instructing the US Ambassador in the UK to try to persuade the British to organise the British Open golf tournament at a Trump property: https://www.wsj.com/articles/u-s-ambassador-told-others-president-asked-him-to-try-to-move-the-british-open-to-trump-property-11595459409

    1. By the wording of the Emoluments Clause, violations fall under the jurisdiction of Congress, not the Judicial branch.

      1. Where does it say that?

        I’ll save you the trouble of Googling. Here is the foreign emoluments clause (which is presumably the one you had in mind):

        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.

        Leaving to one side that the organisation of the British Open isn’t a foreign state (and that I didn’t claim otherwise), where exactly does it say that “violations fall under the [exclusive] jurisdiction of Congress”?

        1. Since it isn’t self-enforcing, it was up to Congress to enforce by legislation or impeachment. Which they didn’t do.

          1. That’s certainly one way to enforce it. (Well, two.)

  16. That’s good. Just in time for the Biden crime family to continue raking in cash from China, Russia, etc. (And not in arm’s-length, fair market value transactions like the Trump businesses).

    1. You’re entitled to your own opinions, but not to your own facts.

    2. Biden crime family

      Playing the old hits, just with new names.

      Sad.

  17. Actually I don’t remember which side you took so let me offer two alternative congratulations, from which you can choose your favorite:

    1. Glad to see that corrupt orange bastard is finally done taking his domestic and foreign emoluments.
    2. Glad to see those sore loser blue state legal terrorists are done throwing sand in the wheels of government.

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