A Pre-Election Update on the Emoluments Clauses Cases

There have been four Emoluments Clauses cases working their way glacially through the federal courts. Three of the four cases were so-called official-capacity claims—the actual defendant was the United States government. Although President Trump was the named defendant, he was only a nominal defendant—a defendant in name-only. In an official-capacity case, because the actual defendant is the United States government, the Department of Justice (“DOJ”) represents the defendant. Blumenthal v. Trump was one such case. The President prevailed before the D.C. Circuit. Plaintiffs filed a petition for certiorari—that is, plaintiffs sought discretionary Supreme Court review. The Supreme Court DENIED certiorari. And so, that case is now over. The President has prevailed. 

There are two other official-capacity cases before the Supreme Court: Trump v. Citizens for Responsibility and Ethics in Washington, which had been heard in the Southern District of New York, and then in the United States Court of Appeals for the Second Circuit, and Trump v. District of Columbia and Maryland, which had been heard in the District of Maryland, and then in the United States Court of Appeals for the Fourth Circuit. In both of these cases, plaintiffs prevailed in the intermediate court of appeals, and the DOJ filed a petition for certiorari. In both of these cases, plaintiffs had the advantage of having prevailed in the court of appeals. In both of these cases, plaintiffs’ opposition briefs were due in October. In both of these cases, there was some possibility that the Supreme Court might decide the case before the election. And, in both of these cases, plaintiffs—not Trump, not the DOJ—sought extensions, which were granted. Plaintiffs’ briefs are now due after the election. Timely resolution before the election is no longer possible. 

The final case, District of Columbia and Maryland v. Trump, is the only individual-capacity claim against the President. The President is being defended by private counsel, apparently, at his own expense. It is being heard in the United States Court of Appeals for the Fourth Circuit. The President’s brief was filed. Plaintiffs’ opposition brief was due in October. There was some possibility of judicial resolution prior to the election. Here too, plaintiffs sought an extension, which was granted. Plaintiffs’ brief is now due after the election. Timely resolution before the election is no longer possible. 

Not only did plaintiffs cause these and other delays, but they complain to the media that Trump has caused the delays. See Josh Gerstein, Trump poised to run out political clock on emoluments suits, Politico (July 9, 2020, 11:34 PM EDT), <https://politico.com/news/2020/07/09/trump-emoluments-suits-355787>. Such claims are simply not true, but the media publishes these allegations, and they are subsequently recirculated on social media. Plaintiffs—not Trump, not the DOJ—have asked for extensions in each of the still ongoing cases. All the while, plaintiffs complain to the media that Trump is blocking judicial review. 

For nearly four years, plaintiffs have told the story that Trump’s outside business interests are illegal, unconstitutional, a threat to national security, and put the interests of plaintiffs and nation at real risk. Yet, at every turn, it is plaintiffs who seek to delay timely judicial review. 

And the national news media has not a word to say.

Seth Barrett Tillman, A Pre-Election Update on the Emoluments Clauses Cases, New Reform Club (Oct. 21, 2020, 4:53 AM), <https://reformclub.blogspot.com/2020/10/a-pre-election-update-on-emoluments.html>;