Blumenthal, a member of the Senate Judiciary Committee and former state attorney general, along with Rep. Jerrold Nadler, D-N.Y., on the House Judiciary Committee, are leading the lawsuit effort, representing nearly 200 Democrats.
“The outcome is crucial to honest government,” Nadler told reporters.
At issue is a clause in the Constitution that states, “And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
In other words, the Democrats argue, members of Congress must vote to consent to whether a president can keep a gift or thing of value from a foreign power, and they couldn’t do so if they didn’t know about the payments.
Chip Somodevilla/Getty Images, FILEThe last rays of sunlight fall on the dome of the U.S. Capitol, Jan. 30, 2018 in Washington.
The arguments, in a packed courtroom before Judge Emmet Sullivan centered on the part of the clause, “without the Consent of the Congres.” and whether the members of Congress had standing, or, in other words, whether they could prove they were harmed.
The defense team, led by the Justice Department’s Deputy Assistant Attorney General of the Civil Division, Brett Shumate, argued that the plaintiffs had no standing because the emoluments clause refers to Congress as a whole institution and the institution would have to claim injury, not individual members.
Not only that, Shumate argued, but the entire issue is a political concern that should not involve the court. Members have “political tools” at their disposal, he said, including voting on measures to stop emoluments or reform the process, using Congress’ power of the purse, and holding hearings to bring concerns to light.
“The president here is injuring the members by denying their right to vote” under the Constitution, “injuring them with each emolument he accepts,” the plaintiffs, led by Constitutional Accountability Center’s Brianne Gorod, argued. “The president is brazenly accepting all manner of gifts,” Gorod continued, saying that members have – to date – had no opportunity to cast a vote.
As for the political solutions proposed by the government, the plaintiffs argued that those were not “adequate,” adding that any legislation would require the president’s unlikely signature and that anything that would change the Constitution would require an unlikely congressional supermajority.
“There’s simply nothing Congress can do,” Gorod argued, saying that neither federal money nor personnel, both over which Congress has power, were at issue here. Congress, in particular, can’t use the power of the purse, because “we’re talking about the President’s private businesses,” Gorod claimed.
The judge asked several times if the Blumenthal-Nadler effort would be strengthened if they were acting on behalf of all members. In particular, there are no Republicans signed onto the effort, and a number of Democrats up for re-election this year are also absent.
But Gorod argued that that did not matter, that just one member would be enough, saying, “It’s the vote that matters.”
Throughout the two and a half hours, Judge Sullivan, a 34-year veteran of the bench, joked with both sides that the case is far from simple or easy, as each side claimed.
Sullivan seemed concerned about members of Congress being denied a vote and wondered what would happen if no court acted in a case like this.
“Isn’t it troubling to the government that there might be no judicial remedy?” Sullivan asked the DOJ’s lawyer Shumate.
Shumate noted that in Maryland, a suit has moved forward, albeit on a narrow track concerning emoluments arising from the Trump International Hotel in downtown Washington. In that case, plaintiffs for Washington, D.C., and Maryland argued the president’s high position and exposure to foreign leaders and businesses give him an unfair competitive advantage.
“I was tremendously encouraged,” Blumenthal said afterward, noting that if the case goes forward, he and his team would seek the president’s tax returns. But as to the argument on standing before the court now, the senator said no other plaintiffs can take this on and prove an injury, adding, “We are the only game in town.”
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