In the case of Trump, our courts failed us and the Constitution

Constitutional provisions have meaning only if they are enforced. That is what makes very disturbing the Supreme Court’s dismissal on January 25 of the lawsuits challenging President Trump’s violations of the Emoluments Clauses of the Constitution. After four years of litigation in the lower courts over whether the cases could be heard at all, the litigation is now over without any ruling as to whether President Trump acted unconstitutionally. Our courts failed and the message to future presidents, and even other litigants, is just to protract litigation and sometimes it will go away.

There are two provisions of the United States Constitution that use the word “emoluments.” Article I, section 9 of the Constitution provides that no person holding federal office “shall, without the consent of the Congress, accept any present, emolument, office or title, or any kind whatever, from any king, prince, or foreign state.” The framers were concerned about foreign governments exercising influence over the fledgling nation. They thus broadly prohibited those in the federal government from receiving any benefit from a foreign country.

Article II, section 1 of the Constitution provides that the President shall be paid a salary, which cannot be increased or decreased while in office, and that the president shall not while in office receive “any other emolument from the United States.” The framers wanted to make sure that the president did not try to benefit financially from the office by receiving other forms of gain from the federal government.

From the day he took office, Donald Trump violated both of these clauses. Foreign governments used Trump hotels rather than competitors — to his direct financial benefit — precisely because he was president. The federal government paid to rent space in his properties on a constant basis. Again, he gained greatly.

On January 23, 2017 — three days after Trump was inaugurated — a lawsuit was filed in federal court in New York challenging Trump’s violation of the Emoluments Clauses. I was one of many co-counsel representing plaintiffs including the organization Citizens for Responsibility and Ethics in Washington as well as hotels, restaurants and their employees seeking to stop this violation of the Constitution.

It took the federal court almost a year, until December 21, 2017, to dismiss the case, holding that the plaintiffs did not have a sufficient personal injury to be able to sue. It then took almost two years — until September 13, 2019 — for the federal court of appeals to reverse the district court and hold that the plaintiffs did have an injury and that their suit could go forward. Trump sought review by all of the judges on that court, which took another year to be denied, on August 14, 2020. Trump then sought Supreme Court review, with the case being dismissed on January 25, 2021.

Two other lawsuits were filed challenging Trump for violating the Emoluments Clauses, and the story of both is similar. One was brought in federal court in Maryland by two state attorney generals on behalf of their states. The issue again was whether the plaintiffs had standing to sue. In this instance, both the district court and the federal court appeals said that the lawsuit could go forward, but the Supreme Court dismissed the case on January 25.

The other suit was brought by members of Congress challenging Trump’s violating the Emoluments Clauses. The federal trial court said that suit could go forward, but the federal court of appeals disagreed. Again, the Supreme Court dismissed the case.

Four years of litigation and no court ever considered the constitutional issues raised: was President Trump violating the Constitution and what should be the remedy? I put the blame for this squarely on the judges. When there is a claim that the president of the United States is violating the Constitution, it is inexcusable to take a year or two years to issue a ruling. That is what happened in the trial courts and the courts of appeals. It let Trump simply run out the clock.

The Emoluments Clauses of the Constitution are meaningless if they can be ignored by the president and if the courts do nothing. Trump won these suits, not because a court found his conduct to be constitutional, but simply because of the pace of litigation. Our courts failed us and the Constitution. We must insist on better in the future when there are claims of unconstitutional government action.

This story was originally published February 11, 2021 at 6:00 AM.