Posted on July 09 2019
As previously explained there are two cases currently working their way through our Judicial System. This is concerning Case 1:17-cv-01154-EGS BLUMENTHAL v Trump in his official capacity as updated here and his other appeal found here. For the record we are still in a “hurry up and wait” holding pattern in the DC & MD AGa Case - Case 8:17-cv-01596-PJM. This link will take you to the numerous previous write ups about Trump and his Emoluments problems.
Case DC & MD AGs -- June 2017 the Attorneys General of the District of Columbia and the State of Maryland filed a lawsuit against Donald Trump. Case No: Case 8:17-cv-01596, link to original complaint, here. See March of 2018 update. See Previous discussion surrounding the unusual GSA appointment, whereby the Presidential Transition informed the GSA that (then) president-elect Trump’s desire to name a GSA head within hours of his January 20, 2017 Inauguration, found here.
This is the March 19, 2019 4thCCOAs Oral Arguments - we are still waiting on their ruling. I had oddly expected their Opinion to be published before the July 4th Holiday since this is truly in my wheelhouse so I’m a bit annoyed that my projected date has clearly come and gone. Remember the 4thCCOAs isn’t a Circuit that pushes daily opinions, they do them in batches. But a quick query on the 4thCCOAs website they released a bunch of Opinions that were originally argued in January of 2019 so it’s reasonable to conclude the MD/DC AGs Appeal might be Published before Labor Day,
I want my certified Interlocutory Appeal NOW
Remember the crux of the Blumenthal et al Case is:
Because Defendant has failed to come to Congress and seek consent before accepting foreign emoluments that have been confirmed through public reporting, it is impossible to know whether Defendant is accepting other foreign emoluments that have not yet been made public. Indeed, through his personal attorney, Defendant has indicated that he does not believe the Constitution requires him to seek or obtain Congress’s consent before accepting benefits arising out of exchanges between foreign states and his businesses
The Democrats in Contend that since Trump did not come to Congress that each members constitutional right to vote up/down has been foreclosed and that the only remedy can be found in the Courts.
In the late afternoon hours of July 8, 201i9 Trump’s Department of Justice filed DEFENDANT’S NOTICE OF PETITION FOR WRIT OF MANDAMUS (paywall) I’ve taken the liberty of pulling down the filing to my google drive, found here
Essentially Trump wants the Federal District Circuit Court of Appeals to step in, stay the Discovery schedule and immediately grant Trump relief. I suppose one could argue that seems reasonable. Conversely that does not cure the incontrovertible fact that Trump continues to accept both Domestic and Foreign Emoluments which is in violation of our Constitution.
“...respectfully notifies the Court that he will shortly file in the U.S. Court of Appeals for the D.C. Circuit a petition for a writ of mandamus against this Court’s orders declining to dismiss the case or to certify an interlocutory appeal, as well as an application for a stay of district court proceedings pending resolution of the mandamus petition.
It is galling to me that Trump’s Department of Justice is “representing him” and yes of course you can argue that we the tax payers are getting hit with a double whammy - we are footing the bill for Congress and the President’s protracted litigation. It is absurd to me that we are essentially paying for this lawsuit. What is particularly obscene is the DOJ outright undercuts the President’s argument in the very first paragraph of their filing, which reads in part:
Members of Congress have brought suit directly under the Constitution against the President of the United States for alleged violations of the Foreign Emoluments Clause. The Members’ complaint rests on a host of novel and flawed constitutional premises—including an assertion of legislator standing that is flatly foreclosed by a Supreme Court decision issued last month—and litigating the claims would entail intrusive discovery into the President’s personal financial affairs on account of his federal office.
Moreover the DOJ absolutely conflates last months SCOTUS ruling - and weirdly comforts it to buttress Trump’s nonsensical arguments...
Virginia House of Delegates v. Bethune-Hill
See Docket # 18-281
See June 17, 2019 SCOTUS Ruling
As a matter of absolute record SCOTUS held the following:
The Virginia House of Delegates lacks standing to file this appeal, either representing the state’s interests or in its own right. Justice Ruth Bader Ginsburg authored the opinion for a 5-4 majority.
To bring a suit (or appeal) in federal court, the litigant must have judicial standing. That is, the litigant must show (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. To appeal a decision that the primary party does not challenge, as here, an intervenor must independently demonstrate standing. Here, the primary party, Virginia, does not appeal the decision of the district court, but an intervenor, the House of Delegates, does. As such, the House of Delegates must demonstrate standing, which it does not.
First, the Court considered whether the House of Delegates had standing to represent the state’s interests. Under Virginia law, the authority for representing the state’s interests in civil litigation lies exclusively with the state attorney general. Thus, the House of Delegates cannot and does not displace this authority.
Then, the Court considered whether the House of Delegates had standing in its own right, concluding again that it does not. The Court has never recognized that a judicial decision invalidating a state law inflicts a cognizable injury on the parts of the state government that were involved in the law’s passage, and it declined to do so here. Given that the state manifests an intent to end the litigation—as evidenced by its decision not to appeal the district court’s decision—the House of Delegates alone cannot carry on the litigation against the will of the state.
Justice Samuel Alito filed a dissenting opinion in which Chief Justice Roberts and Justices Stephen Breyer and Brett Kavanaugh joined. The dissent would find that the House of Delegates does have standing because the new redistricting plan would inflict harm on the House by changing each representative’s constituents.
Samuel A. Alito, Jr.
Well, I would be very uncomfortable trying to decide whether, as a matter of Virginia law, anybody other than the attorney general can ever represent the Commonwealth or whether the House, under some circumstances, can also represent the Commonwealth. That's a question of Virginia law. And if that issue were -- is before us, there would be an argument for certifying that question to the Supreme Court of Virginia for a determination, because I -- I think it's a hard one for us to make.
The Supreme Court of Virginia has allowed the House to intervene under some circumstances, and we don't know exactly what the theory was.
What Trump’s DOJ argues is the Congress does not have the prerequisite standing - they further argue Article III which encapsulates a variety of “hurdles”, specifically standing, Case OR Controversy. What I do not understand is how the DOJ can argue Congress “lacks standing” all while arguing “separation of powers” yet once again ignoring the incontrovertible facts: Trump never sought or obtained permission from Congress to accept domestic and/or foreign “emoluments”, and then Trump’s DOJ predictability of pivoting to “I’m president and I can do what I want” so essentially screw the Constitution.
The Trump DOJ once again argues that the Discovery will impact his personal financial records, again WHY. IS. THE. DOJ ACTING AS TRUMP’S FIXER?
plaintiff seeks to infer an equitable cause of action directly against the President, who is not subject to suit in his official capacity even under statutory causes of action absent an “express statement by Congress,” given his unique position in our constitutional structure.
If you are keeping track that is twice in less than four pages the Trump-DOJ states it’s about the undue burden of Trump’s personal finances that will undoubtedly part of the Discovery. Moreover the District Court stated unequivocally that the expedited discovery schedule (previously agreed to by ALL parties) factored in to the declination to not certify Trump’s Appeal.
Wait WHAT - the Congressional Democrats have sent THIRTY SEVEN SUBPOENAS to various third parties. That’s just splendiferous - no really that’s a lot of subpoenas and no winder why Trump is unhinged even for him.
government also requests that the Court promptly stay further district-court proceedings pending consideration of this mandamus petition. The Members have already propounded thirty-seven subpoenas to third parties. Those requests require a response by July 29, 2019, and the government respectfully requests that, by July 22, 2019, this Court grant a stay of proceedings, as the Fourth Circuit has done in a parallel Emoluments suit.
Irrespective of the litigation at hand the remedy is actually pretty simple: Did Trump seek and obtain authorization to “accept any emoluments”? You already know the answer, no he did not. Does Trump have a true blind trust? And you already know the answer to that no Trump does not have a blind trust.
The Trump-DOJ’s filing is 200+ pages long and I’ll admit I stopped reading it at page 127 because the arguments presented for such extraordinary action - well I found it both nonsensical and unpersuasive. The Trump-DOJ purposefully conflated numerous rulings and it was like a triple circular argument.
Case in point Trump-DOJ argues Members of Congress lack the prerequisite Article IIII “standing Doctrine” that is blatantly false.
Those propositions are plainly untenable, and the case should end with Bethune-Hill, which the district court ignored even though the government brought that recent decision to its attention while the section 1292(b) motion was pending.
Trump-DOJ heavily relies on Raines v. Byrd, 521 U.S. 811 (1997) see Law Library of Congress file. What you may not readily see is what Trump-DOJ’s intent of using the Raines case to buttress their main (and arguably only sustainable argument) of Bethune-Hill - which is largely the only case used to argue Trump’s flawed position.
The question before SCOTUS:
Did the congressmen have Article III standing to challenge the Line Item Veto Act as a violation of the Presentment Clause in Article I?
Appellees lack standing to bring this suit. Pp. 818-830. (a) The federal courts have jurisdiction over this dispute only if it is a case or controversy. Art. III, §2. In order to meet the standing element of the case-or-controversy requirement, appellees must allege a personal injury that is particularized, concrete, and otherwise judicially cognizable. Lujan v. Defenders of Wildlife, 504 U. S. 555, 561; Allen v. Wright, 468 U. S. 737, 751. This Court insists on strict compliance with the jurisdictional standing requirement, see, e.g., id., at 752, and its standing inquiry is especially rigorous when reaching the merits of a dispute would force it to decide the constitutionality of an action taken by one of the other two branches of the Federal Government.Pp. 818-820.
addition, the con- clusion reached here neither deprives Members of Congress of an ade- quate remedy-since they may repeal the Act or exempt appropriations bills from its reach-nor forecloses the Act from constitutional challenge by someone who suffers judicially cognizable injury resulting from it. Pp. 829-830.
What’s more infuriating is on September 28, 2018, the Court ruled that the plaintiffs, all of whom are members of Congress did in fact have standing to sue in the case. That’s not my opinion those are the facts of this case, of which I’ve followed pretty closely. Yet somehow Trump-DOJ continues to purposeful misrepresentation is just unacceptable:
Moreover on April 30th, 2019, Judge Sullivan had previously set aside Trump's motion to dismiss. At which point Judge Sullivan then ruled the plaintiff members of Congress had standing to sue. Furthermore in Judge Sullivan’a April 30, 2019 ruling he went on to say there are grounds for injunctive relief against the President, and that the relief sought by members of Congress was on string constitutional grounds. Again those are not my opinions, those are facts supported by the docket and respective Orders. So I don’t understand how Trump-DOJ can dedicate 200+ pages of subterfuge and think the Federal Circuit Court of Appeals will step on the District Court’s previous Rulings.
At a certain point a reasonably informed person should ask the following series of questions:
Why is Trump so opaque concerning his Taxes?
When did Trump ever seek Approval from Congress?
If Trump has nothing to hide then why not release your taxes and/or open your kimono?
If Trump has nothing to hide then why is he so resistant to Government OverSight?
Now pardon me because reading Trump-DOJ filing was like Dante’s vestibule of Hell aka Canto III: “Lasciate ogne speranza, voi ch'intrate" loosely translated to: "Abandon all hope, ye who enter here." - it was like a judicial parallel Twilight Zone and it was like whiplash that induced a crushing migraine.
While you're here, throw us a bone.
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