That sound you hear is the wail of thousands of legal geeks lamenting Donald Trump’s election loss … at least in this context. Now that Trump has departed the presidency, any lawsuits relating to his businesses and their profits are moot, the Supreme Court decided this morning. They threw out all of the remaining actions based on the Emoluments Clause, not just on their docket but throughout the federal judiciary:
The justices threw out Trump’s challenge to lower court rulings that had allowed lawsuits to go forward alleging that he violated the Constitution’s emoluments clause by accepting payments from foreign and domestic officials who stay at the Trump International Hotel.
The high court also ordered the lower court rulings thrown out as well and directed appeals courts in New York and Richmond, Virginia, to dismiss the suits as moot now that Trump is no longer in office.
The court had two cases before it over the Emoluments Clause: Trump v DC and Trump v CREW. Its orders today not only dismiss both as moot, but essentially renders all further legal proceedings the same. The court cites the Munsingwear case to support its dismissal, a 2008 precedent that has become the standard for mootness, and which SCOTUSBlog discusses in detail bordering on the soporific in this article.
Essentially, Trump’s exit from the office renders any remedy moot. Therefore, the court doesn’t see any point in belaboring the case any further. In truth, though, the Supreme Court would have struggled to find a role for the judiciary in this in the first place, and even apart from that link Trump’s normal business operations to a constitutional violation.
The Emoluments Clause wasn’t intended to keep presidents from running profitable businesses. It was intended to give Congress a way to deal with presidents who get bribed. That itself is a criminal offense, but as courts have repeatedly ruled, a criminal case requires a demonstrated and explicit quid pro quo to stick. The Supreme Court most recently refined that requirement in the case of Bob McDonnell, and it led to the Department of Justice dropping its corruption case against Robert Menendez as well.
The Emoluments Clause reduces this need in two ways. One, it only requires the acceptance of a personal enrichment without the quid pro quo, and two, it moves the venue from criminal prosecution to Congress. This never belonged in the courts in the first place, not without a demonstration of criminal bribery. Congress is the venue for issues relating to the Emoluments Clause.
Even in that context, though, this is still a non-starter. Even if people stayed at the Trump hotels to curry favor with Trump himself, they’re still paying for a legitimate service, not offering a gift. That’s a fair exchange at the same rates anyone else would be charged. Furthermore, voters knew full well that Trump ran luxury hotels and would continue to profit from them while in office. That’s not a bribe or an emolument, but simply the consequence of hiring a private-sector tycoon into office.
In other words, these dogs simply weren’t going to hunt in the first place. One has to imagine that the Supreme Court justices are relieved to send them off to the pound.