Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

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Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by Addie » Thu Apr 27, 2017 9:38 pm

Thread title changed

------------------------------

The Hill
Democrats exploring lawsuit against Trump

Senate Democrats are exploring a lawsuit against President Trump on the grounds that his vast business empire has created conflicts of interest that violate the Constitution.

The effort is being led by Sen. Richard Blumenthal (D-Conn.), who has had preliminary discussions with several senators about the idea. ...

Blumenthal said that he hoped "we'll reach conclusions in the very near future" about course of action to take but stressed that senators were reviewing all options available to them.

"We're very seriously considering all the courses of action that may be open to us because these conflicts of interest are so serious ... and they effect not only the president very deeply but also others in the administration," he said.

Maria McElwain, a spokeswoman for Blumenthal, said “there are ongoing conversations between members of the Senate and constitutional and ethics experts” about what course of action senators could take “if the administration continues to fail to provide transparency and comply with the nation’s laws.”

“Senator Blumenthal is focused on how to make sure that the Trump Administration is held accountable for its unprecedented conflicts of interest, and ensure that no one — not even the President — is above the law,” she added. ...

Democrats warn that unless the president sheds his financial assets and places money in a blind trust, he risks violating the Constitution's Emoluments Clause.
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause

Post by Addie » Wed Jun 14, 2017 8:10 am

USA Today
Democrats in Congress suing Trump, citing conflicts

Nearly 200 Democratic members of Congress filed a lawsuit against President Trump on Wednesday morning alleging that his continued ties to his business empire violate the U.S. Constitution.

The unprecedented legal action accuses Trump of violating the Emoluments Clause of the U.S. Constitution, which prohibits federal officials from accepting gifts or titles from foreign governments without congressional approval. ...

Sen. Richard Blumenthal, D-Conn., said the litigation is necessary to force Trump to disclose the extent to which his companies are conducting business with foreign government entities, and allow Congress to execute its constitutional obligation to grant or deny permission under the Emoluments Clause. ...

The lawmakers filed the complaint Wednesday morning in U.S. District Court for the District of Columbia. The lawsuit seeks a declaratory judgement from the court declaring that Trump is subject to the Emoluments Clause, and an order enjoining Trump from accepting emoluments. ...

Due to differing House and Senate ethics rules, Senators will split the cost of the legal representation. The Constitutional Accountability Center will provide pro-bono legal services to House members.

The litigation is distinct from an action brought earlier this year by a nonprofit watchdog group, Citizens for Responsibility and Ethics in Washington, which also alleges that Trump has violated the emoluments clause. Separately, the attorneys general of Maryland and the District of Columbia also filed a lawsuit this week on similar grounds.
Complaint (Pdf) is here
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause

Post by rpenner » Wed Jun 14, 2017 10:40 am


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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause

Post by Notorial Dissent » Wed Jun 14, 2017 5:28 pm

Just out of curiosity, what is the opinion of the IAL's of the group on these suits?
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause

Post by Mikedunford » Wed Jun 14, 2017 5:41 pm

Notorial Dissent wrote:Just out of curiosity, what is the opinion of the IAL's of the group on these suits?
If any of the suits is going to have any kind of chance, it will most likely be one of the ones where a business claiming harm from loss of business to the Trump properties is a plaintiff. That might at least make it past the Article III case or controversy standing questions of injury-in-fact, causation, and redressability. But that's not a slam dunk. And that still leaves the matter of whether the political question doctrine would require (or at least strongly suggest) that the courts should stay out of it.

Too, also, the wheels of justice grind kinda slow. Even assuming that a court finds standing, finds that the case is one where injunctive relief is appropriate, and issues a preliminary injunction within the next two months,* we could easily be looking at 2020 before the Supreme Court rules on the matter.**


*I'd guess, although I'm not certain, that this has been requested in at least one case.
**Which I think they'd be likely to do, given the novel Constitutional questions.
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause

Post by Orlylicious » Thu Jun 15, 2017 1:25 am

The Daily Caller is reporting on it and seems a bit alarmed.
UNPRECEDENTED: 200 Congressional Democrats Sue Trump
Kevin Daley Legal Affairs Reporter 8:23 AM 06/14/2017
***
The forthcoming litigation is the latest in a series of suits lodged against Trump over emoluments. The first such lawsuit was organized in January by Citizens for Responsibility and Ethics in Washington (CREW), an advocacy group formerly led by Clinton aide David Brock. A number of accomplished lawyers and legal scholars are participating in the effort, including Laurence Tribe, the legendary Harvard Law School professor; Erwin Chemerinsky, incoming dean of the law school at the University of California, Berkeley; and Richard Painter, an ethics lawyer in the George W. Bush White House.

CREW’s lawsuit faces a significant procedural challenge over standing, which requires them to demonstrate that they are injured in some fashion by the Trump Organization’s dealings with foreign governments. What’s more, that injury must be a specific and particularized, not generalized or theoretical harm.

Those involved in litigation brought by congressional Democrats say that they will encounter no such standing issues, because of the special status the emoluments clause grants Congress in such controversies.

“The Framers of our Constitution gave members of Congress the responsibility to protect our democracy from foreign corruption by determining which benefits the president can and cannot receive from a foreign state,” Chemerinsky said. “When the president refuses to reveal which benefits he is receiving — much less obtain congressional consent before accepting them — he robs these members of their ability to perform their constitutional role.”
http://dailycaller.com/2017/06/14/unpre ... ium=Social
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause

Post by rpenner » Thu Jun 15, 2017 3:53 am

The case law is very thin here. I'm going over the three cases piece-by-piece, starting with the 17 pages of case captions in Blumenthal et al v Trump. The first thing I noticed is the Plaintiffs occur in 5 blocks. The two leads, A group of senators, a group of alphabetized senators, a group of representatives, and a group of alphabetized representatives. Does this mirror the practice of a bill having authors, sponsors and people who voted for it?

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Bernie Sanders is an Independent senator who is in the second block.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by Tiredretiredlawyer » Thu Jun 15, 2017 9:14 am

In federal complaints you describe the parties. This format seems standard to me.
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Thu Jun 15, 2017 10:37 am

Tiredretiredlawyer wrote:In federal complaints you describe the parties. This format seems standard to me.
I was commenting on how they were ordered 1 Senator, 1 Representative, 29 Senators (with the last 19 alphabetical by last name) , 165 Representatives (with the last 144 alphabetical by last name) suggests that the first two are being singled out while the alphabetical blocks look as if they were added en masse.

Just trying to make sense of the history of the lawsuit.

From April 27, 2016: http://thehill.com/blogs/floor-action/s ... inst-trump

Refers to earlier lawsuit which wound up being more of a negotiation at the end.

From August 1, 2008: http://articles.latimes.com/2008/aug/01 ... privilege1

From March 11, 2008: http://www.deseretnews.com/article/6952 ... tml?pg=all

From March 10, 2008: http://www.politico.com/blogs/politico- ... ers-006872

https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?130069
http://archive.org/details/gov.uscourts.dcd.130069

Action was stayed during appeal

COMMITTEE ON JUDICIARY V. MIERS United States District Court, D. Columbia.·575 F. Supp.2d 201 (D.D.C. 2008)
https://www.gpo.gov/fdsys/pkg/USCOURTS- ... 5357-0.pdf

In March 2009, the parties agreed to stay the appeal and work things out themselves.
On March 4, 2009, Miers and former Deputy Chief of Staff to President Bush Karl Rove agreed to testify under oath before Congress about the firings of U.S. attorneys.
https://en.wikipedia.org/wiki/Harriet_M ... ontroversy
In October 2009, the testimony was secured and everyone went their own way.
The Agreement Concerning Accommodation has now been implemented. Pursuant to that Agreement, documents were furnished to the Committee and two witnesses, Harriet Miers and Karl Rove, were interviewed by representatives of the Committee subject to negotiated terms and conditions. The defendants have agreed to dismiss this appeal with prejudice following the implementation of the Agreement, and the Committee has agreed to dismiss its complaint with prejudice after the appeal is dismissed. Accordingly, the defendants respectfully ask this Court to dismiss the appeal with prejudice.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Mon Jun 26, 2017 6:14 pm

Last docket update: 2017-06-14
Status: Summons to Trump, Atty. Gen, Attorney for the District of Columbia sent 2017-06-14 — first mandatory deadline for reaction: 2017-08-14

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Sat Jul 01, 2017 2:05 pm

Jun 18 http://www.courant.com/opinion/editoria ... story.html
The lawsuit doesn't specifically accuse Mr. Trump of corruption, but it claims that Congress was deprived of its constitutional right to decide whether the Trump Organization could receive money from those foreign sources, because Mr. Trump did not clear the payments with them first. "An officeholder ... would not be the sole judge of his own integrity," the lawsuit states.
Jun 23 https://www.washingtonpost.com/powerpos ... story.html
Gowdy said there were Trump-related matters that he did see falling within the Oversight panel’s purview — procedures for issuance of security clearances, for instance, and the constitutional prohibition on accepting “emoluments” from foreign benefactors. ... With regard to the emoluments question, Gowdy said he was primarily interested in plumbing the legal implications of the constitutional clause, which maintains that federal officials must not “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
“The first challenge to me is understanding the parameters, how has it historically been applied, and then from that, you can determine whether or not you think there’s been a breach,” he said.
Gowdy suggested he would like to see Rep. Jamie Raskin (D-Md.), a constitutional law professor, and a Republican counterpart on the committee explore the question.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Wed Jul 12, 2017 5:07 pm

07/10/2017 9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DONALD J. TRUMP served on 6/19/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/19/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/19/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 8/18/2017.) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Frazelle, Brian) (Entered: 07/10/2017)
07/12/2017 10 NOTICE of Appearance by Jean Lin on behalf of DONALD J. TRUMP (Lin, Jean) (Entered: 07/12/2017)
07/12/2017 11 Joint MOTION for Extension of Time to Respond to the Complaint and for Entry of Scheduling Order by DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Lin, Jean) (Entered: 07/12/2017)
First Amended Complaint: August 15, 2017
Defendant’s response to the Complaint: September 15, 2017
Any amicus brief in support of Defendant: September 22, 2017
Plaintiffs’ opposition to the motion to dismiss: October 26, 2017
Any amicus brief in support of Plaintiffs: November 2, 2017
Defendant’s reply in support of motion to dismiss: November 21, 2017

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Mon Jul 17, 2017 3:51 pm

07/14/2017 12 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 7/14/2017.(Attachments: # 1 Appendix) (lcegs1) (Entered: 07/14/2017)
07/14/2017 MINUTE ORDER granting 11[RECAP] Joint Motion for Extensions of Time and for Entry of Scheduling Order. The following schedule shall govern proceedings in this case: plaintiffs' first amended complaint shall be filed by no later than August 15, 2017; defendant's response to the complaint shall be filed by no later than September 15, 2017; any motion seeking leave to file an amicus curiae brief in support of defendant, with the brief attached as an exhibit, shall be filed by no later than September 22, 2017; plaintiffs' opposition to the motion to dismiss shall be filed by no later than October 26, 2017; any motion seeking leave to file an amicus curiae brief in support of plaintiffs, with the brief attached as an exhibit, shall be filed by no later than November 2, 2017; defendant's reply in support of the motion to dismiss shall be filed by no later than November 21, 2017. It is FURTHER ORDERED that the parties may file non-hyperlinked briefs in accordance with this schedule. By no later than November 28, 2017, the parties, including those seeking leave to file an amicus curiae brief, shall file E-Briefs containing hyperlinks to any cited exhibits and points and authorities. By no later than November 28, 2017, the parties, including those seeking leave to file an amicus curiae brief, shall submit to the Court two hard copies and one USB drive containing all submissions to the Court governed by this scheduling order, including points and authorities. All paper copy submissions to the Court shall include the headers added by the Case Management/Electronic Case Files (CM/ECF) System and shall be single-sided, double-spaced, use 12-point Times New Roman font, and use one inch page margins. Each set of hard copies shall be in three-ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the pleading therein. It is FURTHER ORDERED that by no later than November 28, 2017, the parties shall jointly submit one copy of each principal case or authority cited by any party. The points and authorities shall be in three-ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the contents therein. Plaintiffs' counsel is HEREBY REMINDED of Local Civil Rule 5.1(c)(1) requiring documents signed by an attorney to include the D.C. Bar identification number of the attorney, as appropriate. Signed by Judge Emmet G. Sullivan on 7/14/2017. (lcegs1) (Entered: 07/14/2017)
07/14/2017 13 ORDER GOVERNING THE FILING OF AMICUS CURIAE BRIEFS. Signed by Judge Emmet G. Sullivan on 7/14/2017. (lcegs1) (Entered: 07/14/2017)
07/16/2017 Set/Reset Deadlines: Plaintiffs' First Amended Complaint due by 8/15/2017. Defendant's Response To The Complaint due by 09/15/2017. Motion Seeking Leave To File An Amicus Curiae Brief In Support Of Defendant, With The Brief Attached As An Exhibit due by 9/22/2017. Plaintiffs' Opposition To The Motion To Dismiss due by 10/26/2017. Motion Seeking Leave To File An Amicus Curiae Brief In Support Of Plaintiffs, With The Brief Attached As An Exhibit due by 11/02/2017. Defendant's Reply In Support Of The Motion To Dismiss due by 11/21/2017. Parties, Including Those Seeking Leave To File An Amicus Curiae Brief, Shall File E-Briefs, Containing Hyperlinks To Any cited Exhibits and Points And Authorities due by 11/28/2017. (mac) (Entered: 07/16/2017)

The DC court doesn't have time for any of your jibber-jabber.
gov.uscourts.dcd.187220.12.0.pdf
gov.uscourts.dcd.187220.13.0.pdf
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Sun Aug 20, 2017 5:07 am

08/15/2017 14 AMENDED COMPLAINT against DONALD J. TRUMP filed by NANCY PELOSI, STENY H. HOYER, KAMALA D. HARRIS, BERNARD SANDERS, CHRIS MURPHY, JOHN CONYERS, JR, TOM CARPER, RICHARD BLUMENTHAL, CATHERINE CORTEZ MASTO, CHRIS VAN HOLLEN, BENJAMIN L. CARDIN, KAREN BASS, JACK REED, JEFF MERKLEY, BRIAN SCHATZ, STEVE COHEN, KIRSTEN E. GILLIBRAND, CORY A. BOOKER, TED W. LIEU, EDWARD J. MARKEY, AL FRANKEN, RON WYDEN, JOSEPH CROWLEY, CHRISTOPHER A. COONS, ERIC SWALWELL, TED DEUTCH, MARTIN HEINRICH, HAKEEM JEFFRIES, MICHAEL F. BENNET, TIM KAINE, TOM UDALL, AMY KLOBUCHAR, JAMIE RASKIN, SHEILA JACKSON LEE, LINDA T. SANCHEZ, RICHARD J. DURBIN, SHELDON WHITEHOUSE, MAZIE K. HIRONO, HENRY C. HANK JOHNSON, JR, DAVID N. CICILLINE, MARIA CANTWELL, PATRICK LEAHY, ZOE LOFGREN, PATTY MURRAY, JAMES E. CLYBURN, CEDRIC L. RICHMOND, JERROLD NADLER, TAMMY DUCKWORTH, LUIS V. GUTIERREZ, ELIZABETH WARREN. (Attachments: # 1 Exhibit Redline -- Amended Complaint)(Gorod, Brianne) (Entered: 08/15/2017)

Adding 5 new congressmen (Ami Bera, D, CA 7; Joe Courtney, D, CT 2; Charlie Crist, D, FL 13; Jimmy Gomez, D, CA 34; John B. Larson, D, CT 1), fixing some typos and adding some specific allegations of benefits received from foreign governments.

Some Changes: ⁋ 23, fn 29 John Mikhail's research on meaning of Emolument.

⁋ 35 Buyers of Trump's properties frequently conceal their identities.

⁋ 38 fn 75. Prohibited benefits means prohibited even before classification of what exact types of benefit it is.

⁋ ⁋ 46-49 Chinese trademarks

⁋ 53 Foreign governments talked at post-election sales pitch on how to "build ties" with Trump.

⁋ 55 Trump runs an expensive, terrible and profitable hotel.
Indeed, during the first four months of 2017, Defendant’s company made nearly $2 million in profit from the hotel, although the company had earlier projected that it would lose over $2 million during that period.98 These profits accumulated despite an occupancy rate well below standard for the industry,99 and despite the hotel’s ranking by a “travel group that specializes in high-end accommodations” as “the world’s third-lousiest new hotel.”100 “Driving the profits are the extraordinary prices guests have been willing to pay for rooms,” as the hotel charges “three times the average rate,” making it probably “the most expensive hotel in the city.”101

98 Jonathan O’Connell, Trump D.C. Hotel Turns $2 Million Profit in Four Months, Wash. Post (Aug. 10, 2017), https://www.washingtonpost.com/politics ... story.html
99 Id.
100 Benjamin Freed, Luxury Travel Group Gives Trump’s DC Hotel a Brutal Review, Washingtonian (Dec. 20, 2016), https://www.washingtonian.com/2016/12/2 ... ry-hotels/ .
101 O’Connell, supra note 98.
⁋ 71 Trump admits his business dealings with Saudi Arabia colors his view of them.

⁋ 72 Trump has extensive business interests requiring Russian government approval.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by Slim Cognito » Sun Aug 20, 2017 7:34 am

My initial impression: Anyone willing to pay exorbitant prices for a lousy hotel room is probably seeking a favor from Trump. But that's just me.

If there was a Captain Obvious smiley, I'd insert it here. This one will do. :doh:

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by realist » Sun Aug 20, 2017 8:39 am

Thanks rpenner. :thumbs:
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Fri Sep 15, 2017 6:09 pm

DOJ response not filed yet. Something to look forward to on Monday.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Sat Sep 16, 2017 1:57 am

09/15/2017 15 MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim by DONALD J. TRUMP (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Lin, Jean) (Entered: 09/15/2017)

Starts with a mischaracterization of what "without the Consent of Congress means" and the meaning of the draft resolution:
Many of the Plaintiffs are sponsors of bills seeking either to declare that the President potentially has violated the Clause, see S. Con. Res. 8, 115th Cong. (2017), or to withhold consent for the President’s alleged violations of the Clause, see H.R.J. Res. 26, 115th Cong. (2017). None of the bills has come to a vote, nor has the President done anything to prevent Congress from holding a vote. Plaintiffs could not convince their own colleagues in Congress to take the actions they desired, and now seek the aid of the Judiciary to circumvent the legislative process prescribed by the Constitution.

https://www.congress.gov/bill/115th-con ... olution/26
Text
(e) No consent To accept foreign emoluments. — The authority granted in article I, section 9, and reaffirmed in subsection (b) hereby denies congressional consent to allow President Donald J. Trump to accept any present, Emolument, Office, or Title of any kind whatever, from any King, Prince, or foreign state.

(f) Applicability of other requirements.

(1) Nothing in this joint resolution supersedes any requirement of related laws that limit the principle that Presidents are entitled to presumptions of good faith and public interestedness in their official conduct.

(2) Nothing in this joint resolution may be construed to imply that an explicit congressional denial of consent is required in order to trigger the prohibition of the Emoluments Clause; on the contrary, only an explicit grant of congressional consent can overcome the prohibition; this joint resolution thus represents not a necessary step to invocation and enforcement of the Clause but only a step taken to underscore the sense of Congress that compliance with the Clause is a matter of the greatest urgency and importance.
In fact, they seem unwilling to concede this basic reading. They equate 6 members of Congress in Raines v. Byrd with the 201 members in the present case.
Even assuming arguendo that the President were required to obtain consent in these circumstances and that his failure to do so somehow deprived Plaintiffs’ of their ability to vote on the issue (which it would not), it is a foundational principle that the denial of institutional legislative prerogative is not a judicially cognizable injury. In Raines v. Byrd, the Supreme Court held that legislators do not have Article III standing based on “a claimed injury to official authority or power.” 521 U.S. 811, 826 (1997). A “diminution of legislative power” that “damages all Members of Congress and both Houses of Congress equally,” id. at 821, the Court held, is not “a sufficiently concrete injury” to give Members of Congress a “personal stake in [the] dispute” with the Executive Branch, id. at 830.
Here they miss the point of Amended Complaint ⁋82 where it is the failure to seek consent of Congress which causes their votes to be completely nullified as held in Raines v. Byrd. In addition, this is not a conflict between two branches of government for it is not Executive action that is complained about but a failure of the office holder to follow his basic constitutional duty to seek consent. So Coleman v. Miller seems more apposite.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Mon Sep 18, 2017 3:46 pm

I think they make a better case that Coleman v. Miller is not very apposite, but remain unconvinced that Raines is more apposite.

In pre-Raines D.C. Circuit Precedent they address American Federation of Government Employees v. Pierce, 697 F.2d 303 (D.C. Cir. 1982), but fail to convince me that it is not apposite and distinguishable from Raines.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Sat Sep 23, 2017 6:05 am

From the other side of the scholarly debate (and the other side of the Atlantic):

09/19/2017 16 MOTION for Leave to File Brief of Scholar Seth Barrett Tillman and Judical Education Project as Amici Curiae in Support of the Defendant by SETH BARETT TILLAN, JUDICIAL EDUCATION PROJECT (Attachments: # 1 Exhibit A - Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, # 2 Text of Proposed Order)(Ray, Robert) Modified to correct filers on 9/20/2017 (znmw). (Entered: 09/19/2017)

Argument Parte the First: In which a history lesson is meant to inject doubt as to whether an office holder is an officer.
Argument Parte the Second: Having shown that the President is a jackass, not an officer, he must not be held to any Constitutional standard.

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Wed Nov 15, 2017 7:02 pm

10/26/2017 17 RESPONSE re 15 MOTION to Dismiss for Failure to State a Claim filed by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, JOHN CONYERS, JR, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, AL FRANKEN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN. (Gorod, Brianne) (Entered: 10/26/2017)
If the President believes that his judgment will not be affected by his receipt of financial rewards from foreign states through his businesses, the Constitution provides a simple solution: obtain “the Consent of the Congress.”

The President attempts to use this textual commitment as a club, Def. Mem. 17, arguing that this case should be dismissed because the issue is better resolved by Congress. But it cannot be resolved by Congress, because Congress cannot force the President to do what the Constitution requires: seek and obtain consent before accepting foreign emoluments. By refusing to do that, the President is denying members of Congress their right to cast binding votes on whether he may accept those emoluments.

[Plaintiffs] have suffered an “injury in fact” because they have been denied a voting opportunity to which the Constitution entitles them. That injury is “fairly traceable” to the President’s conduct because they cannot vote on whether to consent to the acceptance of any emoluments when he accepts them secretly and without seeking congressional consent. And a “favorable judicial decision” by this Court requiring the President to obtain congressional consent before accepting foreign emoluments would redress this injury. Because the Plaintiffs meet these criteria, and because they have no effective legislative means of redressing their injury, they may turn to the courts to enforce their rights.

In sum, the Supreme Court and the D.C. Circuit have held that legislators have a cognizable legal interest in preserving the effectiveness of their votes. They have also held that denying the ability to vote is just as harmful as disregarding the results of a vote. And that makes sense.

President Trump relies chiefly on Raines v. Byrd to dispute the Plaintiffs’ standing. But Raines is not the silver bullet he suggests—far from it. Raines did not overrule Coleman, do away with vote nullification, or hold that legislators cannot be injured in their institutional capacities. While the Court declined to adopt “a drastic extension of Coleman,” Raines, 521 U.S. at 826, it reaffirmed that the complete denial of an effective vote is a cognizable injury.

The drastic measure of impeachment is not an adequate legislative remedy, especially in the context of the Foreign Emoluments Clause. While Campbell mentioned impeachment, it did not suggest that Congress’s power to impeach, standing alone, provides adequate recourse in all cases—which would be tantamount to eliminating all congressional standing. Instead, the court noted that impeachment was available as an enforcement mechanism were the President to defy Congress’s use of the more surgical options at its disposal. Campbell, 203 F.3d at 23. As shown above, comparable surgical options are absent here. And foreclosing judicial enforcement of the Clause, based on the impeachment power, would force upon Congress a Hobson’s choice: either acquiesce to all of the President’s foreign emoluments or overturn his entire presidency and the results of the most recent election. The ability to make that stark choice is not “an equivalent voting opportunity,” Goldwater, 617 F.2d at 703, with the one guaranteed by the Constitution, which entitles Congress to approve or reject emoluments on a case-by-case basis.

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Sterngard Friegen
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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by Sterngard Friegen » Wed Nov 15, 2017 7:09 pm

[Plaintiffs] have suffered an “injury in fact” because they have been denied a voting opportunity to which the Constitution entitles them. That injury is “fairly traceable” to the President’s conduct because they cannot vote on whether to consent to the acceptance of any emoluments when he accepts them secretly and without seeking congressional consent. And a “favorable judicial decision” by this Court requiring the President to obtain congressional consent before accepting foreign emoluments would redress this injury. Because the Plaintiffs meet these criteria, and because they have no effective legislative means of redressing their injury, they may turn to the courts to enforce their rights.
:nope:

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Re: Blumenthal et al v Trump; USDC for DC; Re Emoluments Clause (3)

Post by rpenner » Wed Nov 15, 2017 7:29 pm

My second update -- in come the filings for proposed Amicus Briefs.

11/02/2017 18 MOTION for Leave to File Brief Amici Curiae by MICHAEL BARNES, LEONARD BOSWELL, BARBARA BOXER, Bob Carr, TOM COLEMAN, Mickey Edwards, Lee Hamilton, Tom Harkin, GARY HART, Bob Inglis, CARL LEVIN, Brad Miller, GEORGE MILLER, PHILIP SHARP, CHRIS SHAYS, PETER SMITH, MARK UDALL, HENRY WAXMAN, DICK ZIMMER (Attachments: # 1 Text of Proposed Order)(Donahue, Sean) (Entered: 11/02/2017)
http://www.archive.org/download/gov.usc ... 0.18.0.pdf
I. From textualist, originalist, and structuralist perspectives, the Constitution prohibits the President from accepting presents or emoluments “of any kind whatever” from a foreign state unless he first obtains Congress’s approval. Period.
A. The text of the Foreign Emoluments Clause is clear and unambiguous.
B. An originalist analysis of the Foreign Emoluments Clause establishes the Framers’ intent to provide a sweeping, expansive bulwark against foreign corruption of the President
C. The Constitution’s structure relies on the President disclosing to Congress any financial gain or valuable asset he receives from a foreign state, and past Presidents have understood and followed that command
II. To perform its constitutional duty, Congress needs the federal courts to engage in the limited and modest task of enforcing the Foreign Emoluments Clause’s clear command.
11/02/2017 19 NOTICE of Appearance by Sean Hoe Donahue on behalf of MICHAEL BARNES, et al. (Donahue, Sean) (Entered: 11/02/2017)
11/02/2017 20 NOTICE of Appearance by Thomas C. Goldstein on behalf of DON FOX, et al. (Goldstein, Thomas) (Entered: 11/02/2017)
11/02/2017 21 MOTION for Leave to File Amici Curiae Brief by DON FOX, et al. (Attachments: # 1 Exhibit Amici Curiae Brief of Former Government Ethics Officers, # 2 Text of Proposed Order)(Goldstein, Thomas) (Entered: 11/02/2017)
http://www.archive.org/download/gov.usc ... 0.21.1.pdf
I. The Government’s Legal Interpretations Explain That The Foreign Emoluments Clause Prohibits All Payments That Have Any Realistic Potential Of Corrupting A Public Official.
A The Government’s Guidance Interprets Foreign Emoluments Clause Broadly, But Flexibly, Emphasizing Its Anti-Corruption Purpose.
B. The Government Has Never Approved An Arrangement Whereby A Public Official’s Interest In A Business Could Even Potentially Constitute A Conduit
For Prohibited Emoluments to Reach The Official
II. Compliance With The Foreign Emoluments Clause Is Not Especially Difficult
III. The Complaint States A Valid Claim, And This Is Not A Close Case.
11/02/2017 22 MOTION for Leave to File Amicus Curiae Brief by FORMER NATIONAL SECURITY OFFICIALS (Attachments: # 1 Exhibit Amicus Curiae Brief, # 2 Text of Proposed Order)(Spector, Phillip) (Entered: 11/02/2017)
http://www.archive.org/download/gov.usc ... 0.22.1.pdf
I. A reading of the Foreign Emoluments Clause that encompasses private business dealings with foreign governments is essential to U.S. national security and foreign policy interests in the modern era.
II. The Foreign Emoluments Clause seeks to protect U.S. national security and foreign policy interests by requiring Congress’ notice and approval of the President’s private business dealings with foreign governments
11/02/2017 23 NOTICE of Appearance by Corey William Roush on behalf of FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS (Roush, Corey) (Entered: 11/02/2017)
11/02/2017 24 MOTION for Leave to File Amici Brief In Support of Plaintiffs by FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Roush, Corey) (Entered: 11/02/2017)
http://www.archive.org/download/gov.usc ... 0.24.1.pdf
I. Plaintiffs Have Alleged Cognizable Article III Injuries
A. Plaintiffs’ alleged injuries are particularized and concrete, not generalized or derivative
1. Nullification of specific, identifiable voting opportunities
2. Elimination of particularized institutional prerogatives
B. Plaintiffs’ injuries are actual and ongoing, not speculative or conjectural
II. Plaintiffs’ Injuries Are Fairly Traceable to the Challenged Executive Action
III. Plaintiffs’ Injuries Would Be—And Can Only Be—Redressed By A Court Order
11/02/2017 25 MOTION for Leave to File Brief of Separation of Powers Scholars as Amici Curiae in Support of Plaintiffs by REBECCA L. BROWN, HAROLD H BRUFF, NEIL KINKOPF, CHRISTOPHER H. SCHROEDER, PETER M. SHANE, KEVIN M. STACK, PETER L. STRAUSS (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Mapes, Katharine) (Entered: 11/02/2017)
http://www.archive.org/download/gov.usc ... 0.25.1.pdf
I. ADJUDICATION OF THIS CASE IS CONSISTENT WITH PRECEDENT AND PRINCIPLES OF SEPARATION OF POWERS
A. This case is well within both the competence and authority of the judiciary.
B. This case represents a valid exercise of judicial power against the Executive.
II. THE FOREIGN EMOLUMENTS CLAUSE SUPPORTS CONSTITUTIONAL CHECKS AND BALANCES AND ANTI-CORRUPTION PRINCIPLES.
A. The Foreign Emoluments Clause was part of the framers’ general anti- corruption orientation.
B. Congressional approval is an essential element of the Foreign Emoluments Clause.
C. The Foreign Emoluments Clause is mandatory
III. THE COURT SHOULD NOT LEAVE IMPEACHMENT AS THE ONLY REMEDY TO ADDRESS VIOLATIONS OF THE FOREIGN EMOLUMENTS CLAUSE.
11/02/2017 26 MOTION for Leave to File Brief of Amici Curiae by JED H. SHUGERMAN, JOHN MIKHAIL, JACK RAKOVE, GAUTHUM RAO, SIMON STERN (Attachments: # 1 Exhibit Amici Curiae Brief, # 2 Text of Proposed Order, # 3 Certificate of Service)(Maxman, Melissa) (Entered: 11/02/2017)
http://www.archive.org/download/gov.usc ... 0.26.1.pdf
II. “EMOLUMENTS” IN FOUNDING-ERA DICTIONARIES AND TREATISES
A. DOJ’s Narrow Definition of “Emolument” is Inaccurate, Unrepresentative, and Misleading
B. “Emolument” Had a Broad Commercial Meaning in Eighteenth Century Legal and Economic Treatises
1. “Emolument” in Blackstone’s Commentaries
2. “Emolument” in Pufendorf’s Law of Nature and of Nations and Smith’s Wealth of Nations
III. HISTORY OF THE EMOLUMENTS CLAUSE
A. Historical Background from the English and Dutch to the Articles of Confederation Era
B. Federal Constitutional Convention
C. The Ratification Debates
D. The Founding Generation Used the Word “Emolument” Broadly
11/03/2017 27 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Joshua M. Blackman, :Firm- Joshua M. Blackman, :Address- 1303 San Jacinto Street, Houston, Texas 77002. Phone No. - 202-294-9003. Filing fee $ 100, receipt number 0090-5190329. Fee Status: Fee Paid. by SETH BARRETT TILLMAN (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Ray, Robert) (Entered: 11/03/2017)

The Outlier from the wrong side of the Atlantic files for a new lawyer. Is this a split with the Judicial Education [sic] Project

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