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NEW YORK (Reuters Breakingviews) - Three’s no charm for legal opponents of the American president. Some 200 Democrats in Congress on Wednesday filed the third lawsuit claiming Donald Trump violated a constitutional ban on accepting presents. All the accusers face long odds, though, of proving they were hurt directly or that the suits even belong in court. Impeachment is still probably the only way for Trump's opponents to get him to fold.
The cases are theoretically compelling. They’re based on two provisions of the Constitution that prohibit officeholders from accepting “emoluments” – gifts, princely titles and such – from foreign governments or, in the case of the domestic emoluments clause, states. Both clauses target any temptation for the president or others to skew policies in favor of governments that, in effect, grease their palms. Think of it as the nation’s first conflicts-of-interest prohibition.
Trump’s sprawling empire of real estate, hotels and golf courses creates all kinds of conflicts. Its condominium and shopping-mall projects abroad, for example, may tempt foreign officials to offer cheap financing, reduced taxes or occupancy guarantees in exchange for aid or policy concessions. Trump properties in the United States raise similar opportunities for state officials or for foreign leaders who may want to curry favor with the president by, say, staying at the Trump International Hotel in Washington, D.C., rather than the Marriott down the street.
There’s no evidence these conflicts have influenced the president, but he implicitly acknowledged the problem by putting his adult sons in control of The Trump Organization and hiring two ethics monitors. Neither step is a solution. As Apple or any other company that accepted monitoring in settling a lawsuit could attest, monitors lack power beyond making recommendations, and in this case, no monitor could tell whether Panama, for example, had tried to help Trump by cutting the taxes his hotel pays.
Enter the lawsuits. In their attempts to keep Trump from violating the emoluments clauses, they face the same obstacle: standing. This refers to the legal concept that allows people to sue only if they can show that they were actually hurt by an unlawful act, and that a court can help fix the damage. It’s designed essentially to keep courts from wasting their time on speculative cases.
In January, the public watchdog CREW – Citizens for Responsibility and Ethics in Washington – sued, claiming it had standing because it was forced to spend time and money on the lawsuit. Suspecting this sounded circular, in April it added restaurants and others as plaintiffs, who argued that they were hurt by having to compete with Trump businesses that could lure customers with the unspoken possibility of pleasing the president.
On Monday, Maryland and D.C. jumped in, filing a lawsuit that claimed companies they or their residents owned or financed suffered from Trump enterprises’ unfair advantage, and that local officials felt undue pressure to compete with other states for Trump business. The lawmakers’ suit filed on Wednesday takes yet another tack. It argues that the president is violating congressional approval rights over emoluments by accepting foreign gifts without their consent.
It’s probably true that competing with Trump businesses is a lot harder since the president took office, and foreign dignitaries probably see the upside of patronizing his hotels and such. The plaintiffs in the first two cases have probably been hurt. But standing requires more: that officials felt compelled to stay at the Trump International specifically because they wanted to give the president a payment – an emolument – not because they just wanted to curry favor with him in some general way. In other words, the harm must result from the unlawful payment rather than unfair competition. That could be tough to prove.
What’s more, standing requires that a court be able to fix the damage. If, as the first two lawsuits ask, a judge blocked Trump from receiving payments from foreign officials at his hotels, it’s far from clear that the officials would stop booking rooms there and shift their business to the companies that sued him.
There may be an even bigger problem. Courts won’t hear cases that raise issues best resolved through the political process – voting, legislation and the like. A good example can be a dispute that affects the entire nation rather than specific individuals. Violations of the emoluments clauses seem to fit the bill, because they undermine the right of all Americans to a president untainted by conflicts of interest.
The third lawsuit looks especially odd. It argues that Congress can’t exercise its constitutional right to approve foreign gifts to the president unless it knows what those gifts are – a clever play for Trump’s tax returns. Again, though, the emoluments clauses target potential bribery and corruption, and, especially for Congress, there’s a pretty clear way to address a president’s “bribery or other high crimes and misdemeanors.” It is, of course, impeachment.
The obstacles to impeachment, assuming it were even justified, are obvious in a Congress where both houses are controlled by the president's own party. That, however, doesn’t improve the odds of success for any of these three lawsuits. If Trump's opponents want to call him to account, it will take a lot more than clever lawyering.