Making the ‘Trump Emoluments Suits’ Into a 2018 Bi-Partisan Engine for Change: Using the Emoluments Suits to Examine Pritzker and Kerry As Well As Trump, and Stop the Emoluments Taint in All Parties

32 Pages Posted: 18 Aug 2018

Date Written: August 6, 2018

Abstract

On July 25, 2018, in an “emoluments” lawsuit against United States President Donald Trump, United States District Judge Peter Messitte, of Maryland, issued a ruling that the State of Maryland, led by Attorney General Brian Frosh, and the District of Columbia, led by Attorney General Karl Racine, may undertake “discovery” (examination of documents, and examination of witnesses by “deposition” sworn before a court reporter, to questions posed by lawyers) into Donald Trump’s receipt of money from foreign and U.S. State governments via his hotel in Washington. This is one of three “emoluments” suits: one, brought by a political activism group in the New York federal court, is on appeal after dismissal before “discovery;” the other, brought by Democratic Party U.S. Senators and Representatives in the District of Columbia federal court, has not yet reached the point of published judicial decisions. Prior to this, on March 28, 2018, Judge Messitte ruled that the State of Maryland, led by Mr. Frosh, and the federal District of Columbia (effectively a “federal territory,” that we know as Washington) led by Mr. Racine, had the right (the technical term is “standing”) to sue the President on the subject of “emoluments,” because the United States Constitution bars Cabinet Officers and (according to Judge Messitte) the President from receiving “emoluments” (although, in the case of “emoluments” from foreign governments, the Congress may grant permission). Judge Messitte ruled that financial “emoluments injuries” to the people of Maryland and Washington who are employed in, or who own, hotels and restaurants with which Trump’s hotel competes, were injuries their government Attorneys General could seek to correct and repair. The author of this paper is a “magna cum laude” Juris Doctor graduate of Georgetown University Law Center (1991); judicial clerk to the United States Court of Federal Claims (Judge Roger B. Andewelt, 1991-1992); associate and then partner at the Washington D.C. law firm Arnold & Porter (1992-2006). The author, along with many other lawyers, perceives many procedural problems with the Maryland emoluments suit. Nothing in the “emoluments clauses,” or in the legislation of the early Congresses populated by those who drafted the Constitution, anticipates that the States, let alone federal Territories, would be entitled to police the federal constitutional “emoluments clause” bans on money-payments, especially nothing that would allow the States and Territories to police the “emoluments clauses” in the federal courts, and thereby involve federal judges in personalized political battles between those who win federal executive branch office, and those who wish someone else had won those federal offices. The founders were quite sensitive to state-federal relations, and nothing indicates that they felt that the federal government would be rendered more sound by allowing the States to sue the President, Vice President, and Cabinet Officers to enforce provisions in the Constitution that the Constitution vested in the federal Congress. Judge Messitte has opened the door to every newly-elected President and Vice President, and every newly-appointed Cabinet Officer, to lawsuits by those states and territories that are run by people opposed to the party of that President, Vice President, and Cabinet Officers. It is a formula for chaotic government. By setting short terms for offices (two years for Representatives, four years for the President and Vice President, six years for Senators), the founders envisaged that the people themselves could enforce the provisions restricting office-holders, by refusing to re-elect those who violated the provisions. Various provisions also would be enforceable by the Congress, or by the Presidential Electors, but the ultimate enforcer is the people – because terms are short, votes are frequent, and the desire for re-election powerful. Judge Messitte overlooks this, and presumes that almost everything must be enforceable by a federal judge – even though the founders were so leery of federal judicial involvement that no “federal question” jurisdiction was granted by Congress to the courts until ten years after the end of the Civil War, in 1875. Beyond that, the current “Trump emoluments” suits are biased by a politically partisan motive: to discredit the Republican Party in favor of the Democratic Party. This paper illustrates the hypocrisies by Democrats that produced the current result by Judge Messitte. But the underlying problem – of high federal officials receiving money from foreign or internal sources while in office, and of being influenced thereby – is certainly a very serious, valid concern. The author was for several years in the late 1990s and early 2000s pro bono counsel to the National Endowment for Democracy in Washington, “second chair” to Ken Juster, who is now United States Ambassador to India. The author incorporated and obtained IRS recognition of tax-exempt status for several “spin-off” pro-democracy nonprofits, including the Committee for Human Rights in North Korea. The author knows that every country that wishes to have a government truly representative of that country’s own people must guard against corruption of high governmental officials by “emoluments” proffered from both foreign and domestic sources. The problem is so obvious that the ancient Greek Athenian Demosthenes, in his “Third Philippic” against Philip of Macedon, denounced it at paragraphs 37 to 46 – in the year 351 B.C. – 2,439 years ago. The problem with denouncing the “Trump emoluments suits” on their deeply flawed procedural grounds is that, while several procedural reasons to oppose the suits are valid, asserting those grounds makes it look too easily like the opponent of the suits just wants to preserve the flow of emoluments to powerful political Party patrons who can offer advantages if they have government power. The Maryland emoluments suit is a procedurally defective vehicle for investigating the problem of emoluments – but so long as it is in operation, it must be truly and reliably bi-partisan. This paper not only shows how to ensure that it is, but provides the evidence to show why everyone who believes in sound government ought to want to ensure that it is.

Keywords: Emoluments, Constitution, Trump, Pritzker, Kerry, Messitte

JEL Classification: H11, H30, H50, H70, H80, K19, K29, K39, K40, K41, K42, N42, Z18

Suggested Citation

Sisson, Edward H., Making the ‘Trump Emoluments Suits’ Into a 2018 Bi-Partisan Engine for Change: Using the Emoluments Suits to Examine Pritzker and Kerry As Well As Trump, and Stop the Emoluments Taint in All Parties (August 6, 2018). Available at SSRN: https://ssrn.com/abstract=3226785 or http://dx.doi.org/10.2139/ssrn.3226785

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