Emoluments, Zone of Interests, and Political Questions: The 13th and 14th Strokes of the Clock

Just before Christmas, Judge George Daniels of the Southern District of New York dismissed the first Emoluments case, CREW v. Trump. He avoided reaching the merits of the emoluments claims by finding that the plaintiffs do not have standing to bring the suit. While I disagree with Judge Daniels on his application of competitor standing, it is a complicated and close question. The problem is that this decision contains many serious errors, so that it seems that these close questions did not receive adequate attention. Two of Judge Daniels’s procedural holdings, on the “zone of interests” test and on the political question doctrine, are like the proverbial thirteenth and fourteenth strokes of the clock. To paraphrase the fictional case of Rex v. Haddock (and perhaps Mark Twain and George Orwell’s 1984), those strokes are not only incorrect of themselves, but cast doubt on the preceding twelve.

First, I note that I am a co-author of a legal historians’ amicus brief supporting the plaintiffs. Our brief does not discuss standing directly, but it does relate to the zone of interests of the Emoluments clauses. One reason I helped write this brief is that I thought some of the plaintiffs had a strong claim for standing (particularly ROC United, the association of restaurants who are disadvantaged competitively by Trump’s use of office to draw foreign and domestic state business). I also note that, within just a few hours of Judge Daniels issuing his decison, Daniel Hemel and Leah Litman impressively produced this post on TakeCare enumerating six critical mistakes in the opinion. I am following up  because I have found additional mistakes that cast doubt on the decision generally.

I. The “Zone of Interests” Analysis

Judge Daniels found that the plaintiffs’ competitive disadvantage is not within “the zone of interests” of the two Emoluments Clauses, that they are not covered by the purposes of the Framers in drafting them. On the merits, I think Judge Daniels is incorrect. Our brief emphasizes the Framers focused intensely on the problem of corruption, and they explained that the purposes of the Emoluments Clauses were to guard against corruption (see, e.g., Edmund Randolph and Alexander Hamilton). One of the primary and obvious concerns about corruption is that it creates an “unlevel playing field,” “stacking the deck” in favor of some interests — and some businesses — over others. More on this point below. But more glaring is the problem in Judge Daniels’s legal framing of this argument. He gets the precedents backwards.

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Was Alabama an Aberration? Or Is It a Sign of a Blue Wave?

Now that we’ve celebrated Jones defeating Moore, was the Alabama election an isolated incident of insanity, or can we read something more nationally? Let me point to two recent polls that show a growing national backlash against Trump, plus a recent poll showing the tax plan is historically unpopular.

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Yes, the President can obstruct justice through official acts (Obstruction Part 2)

A president can be criminally liable for obstruction of justice, even for an official constitutional power like firing or pardons. Over the past week, Trump’s lawyer John Dowd, Alan Dershowitz, and others have argued that a president is chief law enforcement officer, and thus cannot be prosecuted for obstruction of justice for exercising a duty recognized by the Constitution. Yesterday, a Wall Street Journal op-ed took another shot at this argument.  This debate has become even more important over the weekend, as these arguments potentially immunize Trump for firing Mueller.

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Yes, Trump can be guilty of obstruction

There is so much to say about John Dowd’s terrible-no-good-very-bad-weekend of legal malpractice.

First, let me address his assertion today that a President cannot commit obstruction of justice. Axios’s Mike Allen reports: “John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice. ‘[The] President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,’ Dowd claims.”

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The Conservative Court-Packing Plan and the Facts about their Fictional “Caseload Crisis”

Federalist Society co-founder Steven Calabresi, writing with Shams Hirji, dropped a bombshell before Thanksgiving. They proposed a massive expansion of the federal judiciary by 33% or even 50%. Linda Greenhouse and Dahlia Lithwick have criticized this proposal. As Ron Klain explained in the Washington Post:

“If conservatives get their way, President Trump will add twice as many lifetime members to the federal judiciary in the next 12 months (650) as Barack Obama named in eight years (325)…”

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Carter Page Adds Fuel and Fire to Oil Deal

Last night, the House Intelligence Committee released the testimony of Carter Page, the Trump campaign’s Russia adviser. It was bizarre and explosive. It corroborated major parts of the Steele Dossier and allegations that the Trump campaign engaged in a massive bribery scheme over the sale of 19.5% of Russia’s largest oil company Rosneft.

Natasha Bertrand at Business Insider had the best early summary of the Page/Russia testimony here. In this post, I am connecting the dots to the bigger scandal over the Rosneft deal and how it implicates more Trump officials — and the name I am adding to the mix (beyond the ones journalists have focused on) is Jared Kushner.

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