CLOSED,APPEAL,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17−cv−00458−GBD

Citizens for Responsibility and Ethics in Washington v. Trump Assigned to: Judge George B. Daniels Related Case: 1:17−cv−01018−GBD Cause: 28:1346 U.S. Defendant
Plaintiff

Date Filed: 01/23/2017 Date Terminated: 12/21/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Citizens for Responsibility and Ethics in Washington

represented by Daniel A. Small Cohen, Millstein, Hausfeld & Toll, P.L.L.C. 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 (202) 408−4600 Fax: (202)−408−4699 Email: dsmall@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Sellers Cohen Milstein Sellers & Toll PLLC (DC) 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 (202) 408−4600 Fax: (202)−408−4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Douglas Spurlock Gupta Wessler PLLC 1735 20th Street, NW Washington, DC 20009 202−888−1741 Fax: 202−888−7792 Email: mspurlock@publiccounsel.net TERMINATED: 09/20/2017 LEAD ATTORNEY

Deepak Gupta Gupta Wessler PLLC 1900 L. Street, NW Suite 312 Washington, DC 20036 202−888−1741 Fax: 202−888−7792 Email: deepak@guptawessler.com ATTORNEY TO BE NOTICED

George Fuad Farah Handley Farah & Anderson PLLC 81 Prospect Street Brooklyn, NY 11201 212−477−8090 Email: gfarah@cohenmilstein.com ATTORNEY TO BE NOTICED

Jonathan Ellis Taylor

Plaintiff Restaurant Opportunities Centers (ROC) United, Inc.
Plaintiff Jill Phaneuf
Plaintiff Eric Goode

Gupta Wessler PLLC 1900 L. Street, NW Suite 312 Washington, DC 20036 (202)−888−1741 Fax: 202−888−7792 Email: jon@guptawessler.com ATTORNEY TO BE NOTICED
Robert Abraham Braun Cohen Milstein Sellers & Toll, PLLC Suite 500 1100 New York Ave., NW Washington, DC 20005 (202)−408−4600 Email: rbraun@cohenmilstein.com ATTORNEY TO BE NOTICED
represented by George Fuad Farah (See above for address) ATTORNEY TO BE NOTICED
Jonathan Ellis Taylor (See above for address) ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) ATTORNEY TO BE NOTICED
Deepak Gupta (See above for address) ATTORNEY TO BE NOTICED
represented by George Fuad Farah (See above for address) ATTORNEY TO BE NOTICED
Jonathan Ellis Taylor (See above for address) ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) ATTORNEY TO BE NOTICED
Deepak Gupta (See above for address) ATTORNEY TO BE NOTICED
represented by George Fuad Farah (See above for address) ATTORNEY TO BE NOTICED
Jonathan Ellis Taylor (See above for address) ATTORNEY TO BE NOTICED
Joseph M. Sellers (See above for address) ATTORNEY TO BE NOTICED

V. Movant Bruce Ackerman
Movant Matthew D. Adler
Movant Samuel Bagenstos
Movant Cary Coglianese
Movant Zachary D. Clopton

Deepak Gupta (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss Becker, Glynn, Muffly, Chassin & Hosinski LLP 299 Park Avenue New York, NY 10171 (212)−888−3033 Fax: (212)−888−0255 Email: AWeiss@beckerglynn.com ATTORNEY TO BE NOTICED
Gregory Phillip Feit Levi Lubarsky Feigenbaum & Weiss LLP 655 Third Avenue. 27th Floor New York, NY 10017 212 308 6100 Fax: 212 308 8830 Email: gfeit@llfwlaw.com ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address)

Movant Seth Davis
Movant Michael C. Dorf
Movant Daniel Farber
Movant Martha A. Field
Movant Daniel Hemel
Movant Pamela S. Karlan
Movant Leah Litman

ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Movant Jenny S. Martinez
Movant Jonathan S. Masur
Movant Jon D. Michaels
Movant Richard Primus
Movant Eli Savit
Movant Peter M. Shane
Movant Scott J. Shapiro

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address)

Movant David C. Vladeck
Movant Brian Wolfman
V. Defendant Donald J. Trump in his official capacity as President of the United States of America
Amicus Scholar Seth Barrett Tillman

ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Jean Lin U.S. Dep't of Justice, Civil Div 20 Massachusetts Ave., N.W., 7th Fl. Washington, DC 20530 202 514−3716 Fax: (202) 616−8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Shumate U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 (202)−514−2331 Email: brett.a.shumate@usdoj.gov
James R. Powers U.S. Department of Justice 20 Massachusetts Ave., Nw Washington, DC 20530 (202)−353−0543 Email: james.r.powers@usdoj.gov ATTORNEY TO BE NOTICED
represented by Robert William Ray Thompson & Knight, LLP (NYC) 900 Third Avenue New York, NY 10022−3915 212−751−3001 Fax: 212−999−9037 Email: Robert.Ray@tklaw.com ATTORNEY TO BE NOTICED

Amicus Sarah P Chayes
Amicus Senator Richard Blumenthal
Amicus Representative John Conyers, Jr. Amicus Former Government Ethics Officers
Amicus Legal Historians
Amicus Judicial Education Project

represented by Ilann M. Maazel Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: imaazel@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Lerner Freeman Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue New York, NY 10020 (212)−763−5000 Fax: (212)−763−5001 Email: efreeman@ecbalaw.com ATTORNEY TO BE NOTICED
represented by David H. Gans Constitutional Accountability Center 1200 18th Street, Nw, Suite 501 Washington, DC 20036 202−296−6889 x307 Fax: (202)−296−6985 Email: david@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Tejinder Singh Goldstein & Russell, P.C. 7475 Wisconsin Ave, Suite 850 Bethesda, MD 20814 202−362−0636 Fax: 866−574−2033 Email: tsingh@goldsteinrussell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel John Walker Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103 (215) 875−3000 Fax: (215) 875−4604 Email: dwalker@bm.net ATTORNEY TO BE NOTICED

Date Filed 01/23/2017 01/23/2017 01/23/2017 01/23/2017
01/23/2017
01/23/2017 01/23/2017 01/23/2017 01/23/2017
01/23/2017 01/23/2017
01/23/2017 01/24/2017 02/09/2017

# Docket Text
1 COMPLAINT against Donald J. Trump. (Filing Fee $ 400.00, Receipt Number 0208−13224937)Document filed by Citizens for Responsibility and Ethics in Washington.(Spurlock, Matthew) (Entered: 01/23/2017)
2 CIVIL COVER SHEET filed. (Spurlock, Matthew) (Entered: 01/23/2017)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Citizens for Responsibility and Ethics in Washington.(Spurlock, Matthew) (Entered: 01/23/2017)
4 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST PDF ERROR − − REQUEST FOR ISSUANCE OF SUMMONS as to Attorney General of the United States, re: 1 Complaint. Document filed by Citizens for Responsibility and Ethics in Washington. (Spurlock, Matthew) Modified on 1/23/2017 (laq). (Entered: 01/23/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Ronnie Abrams. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (laq) (Entered: 01/23/2017)
Magistrate Judge James C. Francis IV is so designated. (laq) (Entered: 01/23/2017)
Case Designated ECF. (laq) (Entered: 01/23/2017)
5 REQUEST FOR ISSUANCE OF SUMMONS as to Donald J. Trump, re: 1 Complaint. Document filed by Citizens for Responsibility and Ethics in Washington. (Spurlock, Matthew) (Entered: 01/23/2017)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE−FILE Document No. 4 Request for Issuance of Summons. The filing is deficient for the following reason(s): the defendant must be named on the summons form to be issued;. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (laq) (Entered: 01/23/2017)
6 ELECTRONIC SUMMONS ISSUED as to Donald J. Trump. (laq) (laq). (Entered: 01/23/2017)
7 ORDER: This case has been assigned to me for all purposes. Within two weeks of service of the Summons and Complaint, the parties shall submit a joint letter advising the Court of any contemplated motions, proposing a briefing schedule with respect thereto, and providing any additional information the parties believe may assist the Court in adjudicating the matter. Plaintiff is ordered to serve Defendant with a copy of this Order and to file an affidavit on the Court's Electronic Case Filing (ECF) system certifying that such service has been effectuated. (Signed by Judge Ronnie Abrams on 1/23/2017) (cf) (Entered: 01/23/2017)
8 NOTICE OF APPEARANCE by Jean Lin on behalf of Donald J. Trump. (Lin, Jean) (Entered: 01/23/2017)
9 NOTICE OF APPEARANCE by Matthew Douglas Spurlock on behalf of Citizens for Responsibility and Ethics in Washington. (Spurlock, Matthew) (Entered: 01/24/2017)
10 MOTION for Joseph M. Sellers to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13296555. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Affidavit Declaration of J.Sellers, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order)(Sellers, Joseph) (Entered: 02/09/2017)

02/10/2017 02/10/2017 02/14/2017 02/14/2017 02/14/2017 02/14/2017 02/15/2017 02/16/2017
02/16/2017 02/17/2017 02/17/2017 02/17/2017 02/27/2017 04/10/2017

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 10 MOTION for Joseph M. Sellers to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13296555. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/10/2017)
11 ORDER granting 10 Motion for Joseph M. Sellers to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 02/10/2017)
12 MOTION for Deepak Gupta to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13313768. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Text of Proposed Order)(Gupta, Deepak) (Entered: 02/14/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 12 MOTION for Deepak Gupta to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13313768. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/14/2017)
13 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Robert Abraham Braun on behalf of Citizens for Responsibility and Ethics in Washington (Braun, Robert) (Entered: 02/14/2017)
14 AFFIDAVIT OF SERVICE of Summons and Complaint. Donald J. Trump served on 2/3/2017, answer due 4/4/2017. Service was made by Mail. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Receipt − US Attorney, # 2 Receipt − Defendant Donald J. Trump, # 3 Receipt − Attorney General)(Spurlock, Matthew) (Entered: 02/14/2017)
15 ORDER granting 12 Motion for Deepak Gupta to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 02/15/2017)
16 MOTION for Daniel A. Small to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13323914. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Supplement Certificate of Good Standing re Motion for Admission PHV for Daniel Small, # 2 Affidavit Affidavit of Daniel Small re Motion to Admit PHV, # 3 Text of Proposed Order Proposed Order re Daniel Small Motion for Admittance PHV)(Small, Daniel) (Entered: 02/16/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 16 MOTION for Daniel A. Small to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13323914. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/16/2017)
17 ORDER granting 16 Motion for Daniel A. Small to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 02/17/2017)
18 JOINT LETTER addressed to Judge Ronnie Abrams from Jean Lin dated February 17, 2017 re: Joint Proposed Schedule. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 02/17/2017)
19 MEMO ENDORSEMENT on re: 18 Letter filed by Donald J. Trump. ENDORSEMENT: SO ORDERED. Donald J. Trump answer due 4/21/2017. (Motions due by 4/21/2017., Responses due by 6/2/2017, Replies due by 6/30/2017.) (Signed by Judge Ronnie Abrams on 2/17/2017) (cf) (Entered: 02/17/2017)
20 BRIEF AMICUS CURIAE OF MARK RICHARDS IN SUPPORT OF DEFENDANT. (sc) (Entered: 02/28/2017)
21 NOTICE OF CHANGE OF ADDRESS by Deepak Gupta on behalf of Citizens for Responsibility and Ethics in Washington. New Address: Gupta Wessler PLLC, 1735

04/18/2017
04/18/2017 04/18/2017 04/19/2017 04/19/2017 04/19/2017 05/10/2017
05/10/2017
05/10/2017 05/10/2017 05/31/2017 05/31/2017 06/05/2017 06/09/2017 06/09/2017

20th Street, NW, Washington, DC, USA 20009, (202) 888−1741. (Gupta, Deepak) (Entered: 04/10/2017)
22 FIRST AMENDED COMPLAINT amending 1 Complaint against Donald J. Trump.Document filed by Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers (ROC) United, Inc., Jill Phaneuf. Related document: 1 Complaint filed by Citizens for Responsibility and Ethics in Washington.(Gupta, Deepak) (Entered: 04/18/2017)
23 CONSENT LETTER MOTION for Leave to File First Amended Complaint addressed to Judge Ronnie Abrams from Deepak Gupta dated 04/18/2017. Document filed by Citizens for Responsibility and Ethics in Washington, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Gupta, Deepak) (Entered: 04/18/2017)
24 ORDER granting 23 Letter Motion for Leave to File Document. APPLICATION GRANTED. (Signed by Judge Ronnie Abrams on 4/18/2017) (cf) (Entered: 04/18/2017)
25 JOINT LETTER MOTION for Extension of Time for Briefing of Dispositive Motion addressed to Judge Ronnie Abrams from Jean Lin dated April 19, 2017. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 04/19/2017)
26 ORDER: granting 25 Letter Motion for Extension of Time. Motions due by 6/2/2017. Response due by 7/14/2017. Reply due by 8/11/2017. (Signed by Judge Ronnie Abrams on 4/19/2017) (ap) (Entered: 04/19/2017)
Set/Reset Deadlines: Responses due by 7/14/2017. Replies due by 8/11/2017. (ap) (Entered: 04/19/2017)
27 LETTER MOTION for Leave to File Second Amended Complaint addressed to Judge Ronnie Abrams from Joseph M. Sellers and Jean Lin dated 05/10/2017., LETTER MOTION for Extension of Time to File Defendant's Dispositive Motion addressed to Judge Ronnie Abrams from Joseph M. Sellers and Jean Lin dated 05/10/2017. Document filed by Citizens for Responsibility and Ethics in Washington, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Gupta, Deepak) (Entered: 05/10/2017)
28 SECOND AMENDED COMPLAINT amending 22 Amended Complaint, against Donald J. Trump.Document filed by Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Eric Goode. Related document: 22 Amended Complaint, filed by Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Jill Phaneuf.(Gupta, Deepak) (Entered: 05/10/2017)
29 ORDER granting 27 Letter Motion for Leave to File Document; granting 27 Letter Motion for Extension of Time to File Amended Complaint. APPLICATION GRANTED. (Signed by Judge Ronnie Abrams on 5/10/2017) (cf) (Entered: 05/11/2017)
Set/Reset Deadlines: Motions due by 6/9/2017. Responses due by 7/14/2017 Replies due by 8/11/2017. (cf) (Entered: 05/11/2017)
30 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge Ronnie Abrams from Jean Lin dated May 31, 2017. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 05/31/2017)
31 ORDER granting 30 Letter Motion for Leave to File Excess Pages. Application granted. (Signed by Judge Ronnie Abrams on 5/31/2017) (ras) (Entered: 05/31/2017)
32 NOTICE OF APPEARANCE by Jonathan Ellis Taylor on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Taylor, Jonathan) (Entered: 06/05/2017)
33 NOTICE OF APPEARANCE by James R. Powers on behalf of Donald J. Trump. (Powers, James) (Entered: 06/09/2017)
34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. Document filed by Donald J. Trump. Responses due by 7/14/2017(Lin, Jean) (Entered: 06/09/2017)

06/09/2017 06/16/2017 06/16/2017
06/16/2017 06/27/2017 06/27/2017
06/28/2017 06/30/2017 06/30/2017 06/30/2017

35 MEMORANDUM OF LAW in Support re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. . Document filed by Donald J. Trump. (Lin, Jean) (Entered: 06/09/2017)
36 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13792657. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) Modified on 6/16/2017 (ma). (Entered: 06/16/2017)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 36 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13792657. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): expired Certificate of Good Standing from VIRGINIA.;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (ma) (Entered: 06/16/2017)
37 MOTION for Leave to File Amicus Curiae Brief . Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Exhibit − Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant)(Ray, Robert) (Entered: 06/16/2017)
38 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) Modified on 6/27/2017 (wb). (Entered: 06/27/2017)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 38 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Virginia;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (wb) (Entered: 06/27/2017)
39 ORDER granting 37 Letter Motion for Leave to File Document. The letter motion seeking leave to file brief of scholar Seth Barrett Tillman as amicus curiae in support of Defendant is granted. (Signed by Judge Ronnie Abrams on 6/28/2017) (cf) (Entered: 06/28/2017)
40 JOINT LETTER MOTION for Extension of Time to File Response/Reply to Motion to Dismiss addressed to Judge Ronnie Abrams from Joseph Sellers and Jean Lin dated June 30, 2017., JOINT LETTER MOTION for Leave to File Excess Pages to Response/Reply to Motion to Dismiss addressed to Judge Ronnie Abrams from Joseph Sellers and Jean Lin dated June 30, 2017. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Sellers, Joseph) (Entered: 06/30/2017)
41 NOTICE OF CHANGE OF ADDRESS by Deepak Gupta on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. New Address: Gupta Wessler PLLC, 1900 L Street, NW, Suite 312, Washington, DC, USA 20036, (202) 888−1741. (Gupta, Deepak) (Entered: 06/30/2017)
42 NOTICE OF CHANGE OF ADDRESS by Jonathan Ellis Taylor on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. New Address: Gupta Wessler PLLC, 1900 L Street, NW, Suite 312, Washington, DC, USA 20036, (202) 888−1741. (Taylor, Jonathan) (Entered: 06/30/2017)

07/05/2017 07/05/2017 07/05/2017
07/06/2017 07/06/2017 07/07/2017 07/07/2017 07/07/2017 07/11/2017 08/04/2017
08/04/2017 08/04/2017 08/04/2017

43 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) (Entered: 07/05/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 43 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 07/05/2017)
44 ORDER granting in part and denying in part 40 Letter Motion for Extension of Time to File Response/Reply; granting in part and denying in part 40 Letter Motion for Leave to File Excess Pages. The parties' request is granted in part. Plaintiffs' Response to Defendant's Motion to Dismiss is due on August 4, 2017. Defendant's Reply is due on September 11, 2017. No further adjournments will be granted absent good cause. The parties' proposals with respect to page limits are approved. (Responses due by 8/4/2017, Replies due by 9/11/2017.) (Signed by Judge Ronnie Abrams on 7/5/2017) (cf) (Entered: 07/05/2017)
45 ORDER granting 43 Motion for Joshua Michael Blackman to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 07/06/2017)
46 CONSENT LETTER MOTION for Extension of Time and for Reconsideration of the Court's July 5, 2017 Order addressed to Judge Ronnie Abrams from Jean Lin dated July 6, 2017. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 07/06/2017)
47 ORDER granting 46 Letter Motion for Extension of Time. In light of the parties' agreement and the factors noted below, the Government's application is granted. (Signed by Judge Ronnie Abrams on 7/7/2017) (cf) (Entered: 07/07/2017)
Set/Reset Deadlines: Replies due by 9/22/2017. (cf) (Entered: 07/07/2017)
***DELETED DOCUMENT. Deleted document number 48 MEMO ENDORSEMENT. The document was incorrectly filed in this case. (ap) (Entered: 07/07/2017)
NOTICE OF CASE REASSIGNMENT to Judge George B. Daniels. Judge Ronnie Abrams is no longer assigned to the case. (ma) (Entered: 07/11/2017)
48 DECLARATION of Deepak Gupta in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Exhibit Part 1 (Definition of Emolument), # 2 Exhibit Part 2 (Definition of Emolument), # 3 Exhibit Part (Definition of Emolument), # 4 Exhibit Part 4 (Definition of Emolument), # 5 Exhibit Part 5 (Definition of Emolument), # 6 Exhibit Part (Definition of Emolument), # 7 Exhibit Part 7 (Definition of Emolument), # 8 Exhibit Part 8 (Definition of Emolument), # 9 Exhibit Part 9 (Definition of Emolument), # 10 Exhibit Part 10 (Definition of Emolument), # 11 Exhibit Part 11 (Definition of Emolument))(Gupta, Deepak) (Entered: 08/04/2017)
49 DECLARATION of Thomas Colicchio in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
50 DECLARATION of Saru Jayaraman in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
51 DECLARATION of James Mallios in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)

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52 DECLARATION of Eric Goode in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
53 DECLARATION of Jill Phaneuf in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
54 DECLARATION of Christopher C. Muller, Ph.D. in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
55 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 58 Declaration) − DECLARATION of Rachel J. Roginsky, ISHC in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) Modified on 8/7/2017 (db). (Entered: 08/04/2017)
56 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 57 Declaration) − MEMORANDUM OF LAW in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. . Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) Modified on 8/7/2017 (db). (Entered: 08/04/2017)
57 MEMORANDUM OF LAW in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. CORRECTED COPY. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
58 DECLARATION of Rachel J. Roginsky, ISHC in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/05/2017)
59 ORDER: Oral argument on Defendant's motion to dismiss filed in the above−reference action is scheduled for October 18, 2017 at 10:30 a.m. ( Oral Argument set for 10/18/2017 at 10:30 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 8/9/2017) (mro) (Entered: 08/09/2017)
60 NOTICE OF APPEARANCE by Ilann M. Maazel on behalf of Sarah P Chayes. (Maazel, Ilann) (Entered: 08/11/2017)
61 NOTICE OF APPEARANCE by Emma Lerner Freeman on behalf of Sarah P Chayes. (Freeman, Emma) (Entered: 08/11/2017)
62 MOTION to File Amicus Brief of Amica Curiae Sarah P. Chayes in Support of the Plaintiff. Document filed by Sarah P Chayes. (Attachments: # 1 Exhibit Brief of Amica Curiae Sarah P. Chayes in Support of Plaintiffs)(Maazel, Ilann) (Entered: 08/11/2017)
63 MOTION for Leave to File Amicus Brief of Senator Richard Blumenthal and Representative John Conyers, Jr., as Amici Curiae in Support of Plaintiffs. Document filed by Richard Blumenthal, John Conyers, Jr. (Attachments: # 1 Exhibit Brief of Senator Richard Blumenthal and Representative John Conyers, Jr., as Amici Curiae in Support of Plaintiffs)(Gans, David) (Entered: 08/11/2017)
64 LETTER MOTION to File Amicus Brief of Scholars of Administrative Law, Constitutional Law, and Federal Jurisdiction in Support of Plaintiffs addressed to Judge George B. Daniels from Andrea Likwornik Weiss dated August 11, 2017. Document filed by Bruce Ackerman, Matthew D. Adler, Samuel Bagenstos, Cary

08/11/2017
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Coglianese, Zachary D. Clopton, Seth Davis, Michael C. Dorf, Daniel Farber, Martha A. Field, Daniel Hemel, Pamela S. Karlan, Leah Litman, Jenny S. Martinez, Jonathan S. Masur, Jon D. Michaels, Richard Primus, Eli Savit, Peter M. Shane, Scott J. Shapiro, David C. Vladeck, Brian Wolfman. (Attachments: # 1 Exhibit Brief of Amici Curiae)(Weiss, Andrea) (Entered: 08/11/2017)
65 NOTICE OF APPEARANCE by Andrea Likwornik Weiss on behalf of Bruce Ackerman, Matthew D. Adler, Samuel Bagenstos, Zachary D. Clopton, Cary Coglianese, Seth Davis, Michael C. Dorf, Daniel Farber, Martha A. Field, Daniel Hemel, Pamela S. Karlan, Leah Litman, Jenny S. Martinez, Jonathan S. Masur, Jon D. Michaels, Richard Primus, Eli Savit, Peter M. Shane, Scott J. Shapiro, David C. Vladeck, Brian Wolfman. (Weiss, Andrea) (Entered: 08/11/2017)
66 NOTICE OF APPEARANCE by Gregory Phillip Feit on behalf of Bruce Ackerman, Matthew D. Adler, Samuel Bagenstos, Zachary D. Clopton, Cary Coglianese, Seth Davis, Michael C. Dorf, Daniel Farber, Martha A. Field, Daniel Hemel, Pamela S. Karlan, Leah Litman, Jenny S. Martinez, Jonathan S. Masur, Jon D. Michaels, Richard Primus, Eli Savit, Peter M. Shane, Scott J. Shapiro, David C. Vladeck, Brian Wolfman. (Feit, Gregory) (Entered: 08/11/2017)
67 NOTICE OF APPEARANCE by Tejinder Singh on behalf of Former Government Ethics Officers. (Singh, Tejinder) (Entered: 08/11/2017)
68 NOTICE OF APPEARANCE by David H. Gans on behalf of Richard Blumenthal, John Conyers, Jr. (Gans, David) (Entered: 08/11/2017)
69 NOTICE OF APPEARANCE by Daniel John Walker on behalf of Legal Historians. (Walker, Daniel) (Entered: 08/11/2017)
70 MOTION for Leave to File Brief of Amicus Curiae By Certain Legal Historians on Behalf of Plaintiffs . Document filed by Legal Historians. (Attachments: # 1 Exhibit A, # 2 Certificate of Service, # 3 Text of Proposed Order)(Walker, Daniel) (Entered: 08/11/2017)
71 MOTION to File Amicus Brief . Document filed by Former Government Ethics Officers. (Attachments: # 1 Exhibit Amicus brief, # 2 Certificate of Service)(Singh, Tejinder) (Entered: 08/11/2017)
72 ORDER granting 71 Motion to File Amicus Brief: The Motion for Leave to file Brief of Amici Curiae by former government ethics officers in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 71. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)
73 ORDER granting 70 Motion for Leave to File Document: The Motion for Leave to file Brief of Amici Curiae by certain legal historians in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 70. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)
74 ORDER granting 64 Letter Motion to File Amicus Brief: The Motion for Leave to file Brief of Amici Curiae by scholars of administrative law, constitutional law, and federal jurisdiction in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 64. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)
75 ORDER: granting 63 Letter Motion for Leave to File Document. The Motion for Leave to file Brief of Amici Curiae by Senator Richard Blumenthal and Representative John Conyers, Jr. in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 63. (Signed by Judge George B. Daniels on 8/15/2017) (ap) (Entered: 08/15/2017)
76 ORDER granting 62 Motion to File Amicus Brief: The Motion for Leave to file Brief of Amicus Curiae by Sarah P. Cha yes in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 62. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)

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77 NOTICE of Errata re: 54 Declaration in Opposition to Motion, 50 Declaration in Opposition to Motion, 52 Declaration in Opposition to Motion,. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Errata Corrected Declaration of Saru Jayaraman, # 2 Errata Corrected Declaration of Eric Goode, # 3 Errata Corrected Declaration of Christopher C. Muller)(Gupta, Deepak) (Entered: 08/25/2017)
78 LETTER addressed to Judge George B. Daniels from Deepak Gupta dated 08/25/2017 re: Second Circuit's decision in Centro De Law v. Town of Oyster Bay. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Exhibit Second Circuit's Decision in Centro de Law v. Town of Oyster Bay)(Gupta, Deepak) (Entered: 08/25/2017)
79 NOTICE OF APPEARANCE by George Fuad Farah on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Farah, George) (Entered: 08/31/2017)
80 MOTION for Matthew Spurlock to Withdraw as Attorney . Document filed by Citizens for Responsibility and Ethics in Washington. Return Date set for 9/18/2017 at 04:00 PM.(Spurlock, Matthew) (Entered: 09/18/2017)
81 MOTION for Carrie Severino to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14145588. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Judicial Education Project. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) (Entered: 09/19/2017)
82 MOTION for Leave to Appear − For Judicial Education Project to Appear and Join in the Amicus Brief previously filed on behalf of Tillman. Document filed by Scholar Seth Barrett Tillman.(Ray, Robert) (Entered: 09/19/2017)
83 MEMORANDUM OF LAW in Support re: 82 MOTION for Leave to Appear − For Judicial Education Project to Appear and Join in the Amicus Brief previously filed on behalf of Tillman. . Document filed by Scholar Seth Barrett Tillman. (Ray, Robert) (Entered: 09/19/2017)
84 MOTION for Leave to File −Motion of Scholar Seth Barrett Tillman and Judicial Education Project for Leave to file Response to Amici Curiae by Certain Legal Historians. Document filed by Scholar Seth Barrett Tillman.(Ray, Robert) (Entered: 09/19/2017)
85 MEMORANDUM OF LAW in Support re: 84 MOTION for Leave to File −Motion of Scholar Seth Barrett Tillman and Judicial Education Project for Leave to file Response to Amici Curiae by Certain Legal Historians. . Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M part 1, # 15 Exhibit M part 2, # 16 Exhibit M part 3, # 17 Exhibit M part 4, # 18 Exhibit M part 5, # 19 Exhibit M part 6, # 20 Exhibit M part 7, # 21 Exhibit M part 8, # 22 Exhibit M part 9, # 23 Exhibit N, # 24 Exhibit O, # 25 Exhibit P part 1, # 26 Exhibit P part 2, # 27 Exhibit P part 3, # 28 Exhibit P part 4, # 29 Exhibit Q, # 30 Exhibit R)(Ray, Robert) (Entered: 09/19/2017)
86 MOTION of Amicus Curiae Scholar Seth Barrett Tillman and Proposed Amicus Curiae Judicial Education Project for Leave to be heard at Oral Arguments. Document filed by Scholar Seth Barrett Tillman.(Ray, Robert) (Entered: 09/19/2017)
87 MEMORANDUM OF LAW in Support re: 86 MOTION of Amicus Curiae Scholar Seth Barrett Tillman and Proposed Amicus Curiae Judicial Education Project for Leave to be heard at Oral Arguments. . Document filed by Scholar Seth Barrett Tillman. (Ray, Robert) (Entered: 09/19/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 81 MOTION for Carrie Severino to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14145588. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are

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no deficiencies. (wb) (Entered: 09/20/2017)
88 ORDER FOR ADMISSION PRO HAC VICE granting 81 Motion for Carrie Severino to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/20/2017) (jwh) (Entered: 09/20/2017)
89 MEMO ENDORSEMENT granting 80 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. (Attorney Matthew Douglas Spurlock terminated.) (Signed by Judge George B. Daniels on 9/20/2017) (jwh) (Entered: 09/20/2017)
91 ORDER denying 84 Motion for Leave to File Document: The motion filed by amicus curiae Seth Barrett Tillman and Judicial Education Project ("JEP") for leave to respond to the brief of amici curiae by certain legal historians is DENIED. (Signed by Judge George B. Daniels on 9/21/2017) (jwh) (Entered: 09/21/2017)
***DELETED DOCUMENT. Deleted document number 90 Order. The document was incorrectly filed in this case. (jwh) (Entered: 09/21/2017)
92 ORDER granting 82 Motion for Leave to Appear and join in the amicus brief filed on Tillman's behalf: The motion filed by amicus curiae Seth Barrett Tillman and Judicial Education Project ("JEP") seeking leave for JEP to appear jointly with Tillman as amici curiae and for JEP to join in the amicus brief filed on Tillman's behalf is GRANTED. (Signed by Judge George B. Daniels on 9/21/2017) (jwh) (Entered: 09/21/2017)
93 ORDER denying 86 Motion to be heard at Oral Argument: The motion filed by amicus curiae Seth Barrett Tillman and Judicial Education Project ("JEP") requesting leave to be heard at oral argument is DENIED. (Signed by Judge George B. Daniels on 9/21/2017) (jwh) (Entered: 09/21/2017)
94 REPLY MEMORANDUM OF LAW in Support re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. . Document filed by Donald J. Trump. (Lin, Jean) (Entered: 09/22/2017)
95 NOTICE OF APPEARANCE by Brett Shumate on behalf of Donald J. Trump. (Shumate, Brett) (Entered: 09/27/2017)
96 LETTER addressed to Judge George B. Daniels from Daniel J. Walker dated October 3, 2017 re: Docket No. 70. Document filed by Legal Historians.(Walker, Daniel) (Entered: 10/03/2017)
97 LETTER addressed to Judge George B. Daniels from Deepak Gupta dated 10/7/2017 re: Supplemental Authority (Report of Office of Congressional Ethics). Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Office of Congressional Ethics Report)(Gupta, Deepak) (Entered: 10/07/2017)
Minute Entry for proceedings held before Judge George B. Daniels: Oral Argument held on 10/18/2017 re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. filed by Donald J. Trump. Plaintiff Counsel: Deepak Gupta, Jonathan E. Taylor, Joshua Matz, Joseph M. Sellers, Daniel Townsend; Defense Counsel: Jean Lin, Brett Shumate Also Present: Norm Eisen, Noah Bookbinder, Zephyr Teachout, and Court Reporter present. (Vega, Elizabeth) (Entered: 10/18/2017)
98 LETTER addressed to Judge George B. Daniels from Brett Shumate dated 10/25/2017 re: correcting misstatement made during Oct. 18, 2017, hearing. Document filed by Donald J. Trump.(Shumate, Brett) (Entered: 10/25/2017)
99 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/18/2017 before Judge George B. Daniels. Court Reporter/Transcriber: Alena Lynch, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/29/2017. Redacted Transcript Deadline set for 12/11/2017. Release of Transcript Restriction set for 2/6/2018.(McGuirk, Kelly) (Entered: 11/08/2017)

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100 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/18/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/08/2017)
101 LETTER addressed to Judge George B. Daniels from Jean Lin dated November 24, 2017 re: Post−hearing Development. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 11/24/2017)
102 LETTER addressed to Judge George B. Daniels from Deepak Gupta dated December 1, 2017 re: Defendant's Letter dated November 24, 2017 (Docket No. 101). Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Gupta, Deepak) (Entered: 12/01/2017)
103 MEMORANDUM DECISION AND ORDER. Defendant's motion to dismiss is GRANTED. Accordingly, Plaintiffs' claims and this case are DISMISSED. So ordered. Granting 34 Motion to Dismiss. (Signed by Judge George B. Daniels on 12/21/2017) (rjm) (Entered: 12/21/2017)
Transmission to Judgments and Orders Clerk. Transmitted re: 103 Order on Motion to Dismiss to the Judgments and Orders Clerk. (rjm) (Entered: 12/21/2017)
104 CLERK'S JUDGMENT: That for the reasons stated in the Court's Memorandum Decision and Order dated December 21, 2017, Defendant's motion to dismiss for lack of standing under Rule 12(b)(1) is granted; accordingly, Plaintiffs' claims and this case are dismissed. (Signed by Clerk of Court Ruby Krajick on 12/21/2017) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 12/21/2017)
Terminate Transcript Deadlines (dt) (Entered: 12/21/2017)
105 NOTICE OF APPEAL from 103 Order on Motion to Dismiss, 104 Clerk's Judgment,. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. Filing fee $ 505.00, receipt number 0208−14710868. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Gupta, Deepak) (Entered: 02/16/2018)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 105 Notice of Appeal. (tp) (Entered: 02/16/2018)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 105 Notice of Appeal, filed by Eric Goode, Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Jill Phaneuf were transmitted to the U.S. Court of Appeals. (tp) (Entered: 02/16/2018)
106 INTERNET CITATION NOTE: Material from decision with Internet citation re: 103 Order on Motion to Dismiss. (Attachments: # 1 Internet Citation) (dnh) (Entered: 07/23/2018)
107 NOTICE OF CHANGE OF ADDRESS by George Fuad Farah on behalf of All Plaintiffs. New Address: Handley Farah & Anderson PLLC, 81 Prospect Street, Brooklyn, NY, United States 11201, 212−477−8090. (Farah, George) (Entered: 10/24/2018)
108 NOTICE of Withdrawal of Appearance of Norman Eisen. Document filed by Citizens for Responsibility and Ethics in Washington. (Small, Daniel) (Entered: 03/04/2019)
109 MEMO ENDORSEMENT on re: 108 Notice (Other) filed by Citizens for Responsibility and Ethics in Washington. ENDORSEMENT: SO ORDERED. (Signed by Judge George B. Daniels on 3/5/2019) (jwh) (Entered: 03/05/2019)
110 USCA OPINION (Certified) as to 105 Notice of Appeal, filed by Eric Goode, Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Jill Phaneuf. USCA Case Number 18−0474. Plaintiffs, who own and operate businesses in the hospitality industry, appeal from the dismissal of

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their lawsuit by the United States District Court for the Southern District of New York (George B. Daniels, J.). The district court dismissed Plaintiffsf suit on the grounds that Plaintiffs lack Article III standing, they fall outside the zone of interests of the Emoluments Clauses, their claims do not present a ripe case or controversy within the meaning of Article III, and the case presents a non−justiciable "political question." The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion.. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 09/13/2019. (nd) (Entered: 09/13/2019)
Transmission of USCA Opinion to the District Judge re: 110 USCA Opinion. (nd) (Entered: 09/13/2019)
111 USCA OPINION (Certified) as to as to 105 Notice of Appeal, filed by Eric Goode, Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Jill Phaneuf. USCA Case Number 18−0474. Plaintiffs, who own and operate businesses in the hospitality industry, appeal from the dismissal of their lawsuit by the United States District Court for the Southern District of New York (George B. Daniels, J.). The district court dismissed Plaintiffsf suit on the grounds that Plaintiffs lack Article III standing, they fall outside the zone of interests of the Emoluments Clauses, their claims do not present a ripe case or controversy within the meaning of Article III, and the case presents a non−justiciable "political question." The judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this opinion. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 09/13/2019. (Attachments: # 1 JOHN M. WALKER, JR., Circuit Judge, dissenting Opinion:)(nd) (Entered: 09/13/2019)

 
 Case 1:17-cv-00458 Document 1 Filed 01/23/17 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,
Plaintiff,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,

Civil Action No.

Defendant.

COMPLAINT

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767
ERWIN CHEMERINSKY* Dean of the School of Law University of California, Irvine 401 East Peltason Drive Irvine, CA 92697 (949) 824-7722
ZEPHYR TEACHOUT* Associate Professor of Law Fordham Law School 150 West 62nd Street New York, NY 12580 (646) 312-8722

AMBASSADOR (RET.) NORMAN L. EISEN Chair, Board of Directors RICHARD W. PAINTER Vice Chair, Board of Directors NOAH BOOKBINDER ADAM J. RAPPAPORT STUART C. MCPHAIL Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W., 6th Floor Washington, DC 20001 (202) 408-5565
DEEPAK GUPTA JONATHAN E. TAYLOR RACHEL S. BLOOMEKATZ MATTHEW SPURLOCK Gupta Wessler PLLC 1735 20th Street, N.W. Washington, DC 20009 (202) 888-1741

*Affiliations noted for identification purposes only

Attorneys for Plaintiff Citizens for Responsibility and Ethics in Washington

Case 1:17-cv-00458 Document 1 Filed 01/23/17 Page 2 of 39 TABLE OF CONTENTS
I. Nature of the Action .......................................................................................................... 1 II. Parties, Jurisdiction, and Venue......................................................................................... 4 III. Legal Background .............................................................................................................. 6 IV. Relevant Facts .................................................................................................................... 9
A. Defendant’s Foreign Emoluments Clause Violations ............................................ 9 B. CREW’s Primary Injuries .................................................................................... 23 C. Other Injuries....................................................................................................... 32 V. Claims .............................................................................................................................. 33 VI. Prayer for Relief ............................................................................................................... 36
i

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Citizens for Responsibility and Ethics in Washington, for its complaint against Donald J. Trump, in his official capacity as President of the United States, alleges as follows:
I. NATURE OF THE ACTION 1. Never before have the people of the United States elected a President with business interests as vast, complicated, and secret as those of Donald J. Trump. Now that he has been sworn into office as the 45th President of the United States, those business interests are creating countless conflicts of interest, as well as unprecedented influence by foreign governments, and have resulted and will further result in numerous violations of Article I, Section 9, Clause 8 of the United States Constitution, the “Foreign Emoluments Clause.” 2. These violations of the Foreign Emoluments Clause pose a grave threat to the United States and its citizens. As the Framers were aware, private financial interests can subtly sway even the most virtuous leaders, and entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic. The Foreign Emoluments Clause was forged of the Framers’ hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of selfgovernance. And applied to Donald J. Trump’s diverse dealings, the text and purpose of the Foreign Emoluments Clause speak as one: this cannot be allowed.1 3. Ultimately, the theory of the Foreign Emoluments Clause—grounded in English history and the Framers’ experience—is that a federal officeholder who receives something of value from a foreign power can be imperceptibly induced to compromise what the Constitution
1 Norman L. Eisen, Richard Painter & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump (Dec. 16, 2016), available at https://www.brookings.edu/wpcontent/uploads/2016/12/gs_121616_emoluments-clause1.pdf.
1

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insists be his or her exclusive loyalty: the best interest of the United States of America. And rather than guard against such corruption by punishing it after-the-fact, the Framers concluded that the proper solution was to write a strict rule into the Constitution itself, thereby ensuring that shifting political imperatives and incentives never undo this vital safeguard of freedom.2
4. Plaintiff Citizens for Responsibility and Ethics in Washington (CREW) is a nonprofit, nonpartisan organization founded in 2002 that works on behalf of the public to foster an ethical and accountable government and reduce the influence of money in politics. CREW brings this action to stop and prevent the violations of the Foreign Emoluments Clause that Defendant Donald J. Trump has committed and will commit, which have already injured—and, without a remediable order from this Court, will continue to injure—CREW in the form of a significant diversion and depletion of its time, resources, and efforts. CREW has standing under Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), because there has been a “concrete and demonstrable injury to the organization’s activities[,] with the consequent drain on the organization’s resources.” See also Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904-05 (2d Cir. 1993). CREW seeks declaratory relief determining the meaning of the Foreign Emoluments Clause and stating that Defendant’s present and future conduct violates this provision, as well as injunctive relief ordering Defendant to refrain from violating the Foreign Emoluments Clause.
5. The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Though courts have not had many occasions to interpret this constitutional provision, it
2 Id.; see also Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 18 (1994) (“Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government.”).
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is widely understood—and CREW agrees—that this clause covers the President of the United States and prevents him or her from accepting anything of value, monetary or nonmonetary, from any foreign government or its agent or instrument without congressional consent. The Framers inserted this clause into the Constitution to prevent any type of foreign influence or corruption from infiltrating the United States government.
6. Defendant, however, has repeatedly stated the misguided refrain that “the President can’t have a conflict of interest,” and his attorney, just nine days before his inauguration, stated that “the so-called Emoluments Clause has never been interpreted . . . to apply to fair value exchanges that have absolutely nothing to do with an office holder” and that the “Constitution does not require President-elect Trump to do anything here.”
7. As a direct result of Defendant’s articulated view of the Foreign Emoluments Clause—which is legally unsupportable and stands in stark contrast to CREW’s view of the Foreign Emoluments Clause—Defendant has violated the Constitution during the opening moments of his presidency and is poised to do so continually thereafter for the duration of his administration. Specifically, Defendant has committed and will commit Foreign Emoluments Clause violations involving at least: (a) leases held by foreign-government-owned entities in New York’s Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant’s Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by Defendant; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program “The Apprentice” and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries.
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8. As a direct result of Defendant’s refusal to address these and other violations of the Foreign Emoluments Clause, CREW has been significantly injured. CREW has been forced to divert essential and limited resources—including time and money—from other important matters that it ordinarily would have been handling to the Foreign Emoluments Clause issues involving Defendant, which have consumed the attention of the public and the media. Moreover, without declaratory and injunctive relief from this Court, CREW will continue to suffer this diversion and depletion of resources for the remainder of Defendant’s administration. CREW will essentially be forced into the role of litigating and educating the public regarding Defendant’s Foreign Emoluments Clause violations, rather than continuing its mission of serving as a watchdog with respect to all ethical issues involving all parts of our government.
9. Accordingly, CREW requests that this Court: (a) enter a declaratory judgment resolving the actual controversy between the parties over the meaning of the Foreign Emoluments Clause and stating that Defendant’s conduct violates the Foreign Emoluments Clause; and (b) enjoin Defendant from violating the Foreign Emoluments Clause.
II. PARTIES, JURISDICTION, AND VENUE 10. CREW is a nonprofit, nonpartisan corporation organized under the laws of Delaware and exempt from taxation under 26 U.S.C. § 501(c)(3). CREW is committed to protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. CREW seeks to empower citizens to have an influential voice in government decisions and in the governmental decision-making process through the dissemination of information about public officials and their conduct. CREW works to advance reforms in the areas of ethics, campaign finance, lobbying, and transparency, and
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seeks to ensure the proper interpretation and enforcement of government ethics laws and other laws related to corruption and money in politics.
11. To advance its mission, CREW uses a combination of research, litigation, advocacy, and public education to disseminate information about public officials, their actions, and the outside influences that have affected those actions. A core part of this work is examining and exposing special interests that have influenced public officials and elections, and then using that information to educate the public and voters regarding the integrity of public officials, candidates for public office, the electoral process, and our system of government.
12. Toward this end, CREW monitors the activities of public officials and candidates, as well as businesses and others that financially support them, including support received through campaign contributions, gifts, and businesses or other entities associated with public officials. CREW regularly reviews public records that disclose the financial benefits provided to public officials and their business interests, including personal financial-disclosure forms, campaignfinance reports, travel records, and lobbying reports. CREW further conducts independent research to uncover financial support for public officials and candidates, reviewing business records, tax returns, property records, and news reports. CREW’s research also regularly includes filing federal and state public-records requests and reviewing the records obtained.
13. A part of CREW’s work in carrying out its central mission focuses on so-called “pay-to-play” schemes. Toward that end, CREW looks for correlations between financial benefits received by public officials and their subsequent conduct.
14. Using the information obtained from public records and independent research, CREW—through its website, press releases, reports, and other methods of distribution— publicizes the roles of individuals, groups, and businesses attempting to use financial support to exert influence on politics and public policy, and of the public officials and candidates who accept
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that support. In particular, CREW publicizes violations of ethics, campaign finance, and other anti-corruption laws and rules by those public officials and candidates. CREW also regularly files complaints with government agencies when it discovers violations of these laws and rules. In addition, CREW regularly files lawsuits to compel government agencies to properly interpret and enforce anti-corruption, accountability, and transparency laws and rules, and participates as an amicus in related civil and criminal litigation.
15. By publicizing violations and filing complaints and lawsuits, CREW advances its mission of keeping the public informed about public officials and candidates and deterring future violations of these laws and rules.
16. Defendant is the President of the United States of America. He is being sued here in his official capacity as President.
17. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 2201. 18. Venue is proper in the Southern District of New York under 28 U.S.C. § 1391(e)(1). Defendant is “an officer . . . of the United States . . . acting in his official capacity or under color of legal authority,” and the Southern District of New York is a “judicial district” in which “a substantial part of the events or omissions giving rise to the claim occurred,” and where “a substantial part of property that is the subject of the action is situated.” For example, New York’s Trump Tower and Defendant’s “Trump Organization”—both key components of CREW’s claims—are based in the Southern District of New York.
III. LEGAL BACKGROUND 19. Article I, Section 9, Clause 8 of the U.S. Constitution provides as follows: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of
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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.”
20. The origins of this provision, the “Foreign Emoluments Clause,” date back as far as 1651, when the Dutch broke with classic European diplomatic customs and prohibited their foreign ministers from accepting “any presents, directly or indirectly, in any manner or way whatever.” Impressed, the early Americans included similar text—the predecessor for the Foreign Emoluments Clause—in Article 6, Section 1 of the Articles of Confederation: “[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State.”
21. The anti-emolument provision from the Articles of Confederation initially was not included at the Constitutional Convention, but it was added without dissent at the request of Charles Pinckney, who “urged the necessity of preserving foreign Ministers & other officers of the U. S. independent of external influence.”3 Edmund Jennings Randolph echoed the anticorruption purpose of the Foreign Emoluments Clause included in the Constitution: “It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”4 The Framers recognized the dangers of foreign influence and corruption, even in situations subtler than quid pro quo bribery, and thus they created a broad constitutional prophylactic applicable to anything of value given by any foreign government to any officer of the United States.
22. Since the inception of the Foreign Emoluments Clause, it has been widely and expressly acknowledged that a “Person holding any Office of Profit or Trust” includes the
3 2 Farrand, The Records of the Federal Convention of 1787, at 389. 4 3 Farrand, The Records of the Federal Convention of 1787, at 327.
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President. Indeed, Randolph confirmed as much at the Virginia Ratifying Convention: “There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. . . . I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.”5 The Office of Legal Counsel has continually adhered over time to that widely accepted interpretation, reaffirming as recently as 2009 that “[t]he President surely ‘hold[s] an[] Office of Profit or Trust.’”6 And Defendant’s own attorneys noted before Defendant became President that “the President-Elect will be bound by . . . his obligations under the Constitution,” which “includes the obligations created by . . . the Foreign Emoluments Clause.”7
23. Consistent with the Framers’ intent, the definition of a “present” or “Emolument” under the Foreign Emoluments Clause also is properly interpreted in a broad manner, to cover anything of value, monetary or nonmonetary. The text of the clause itself prohibits the receipt of both a “present,” which, presumably, an officer would receive without necessarily doing or giving anything in return, and an “Emolument,” which could cover anything else of value, including remuneration at, above, or below market rates. The Foreign Emoluments Clause also explicitly prohibits the receipt of “any present [or] Emolument . . . of any kind whatever,” emphasizing the breadth of the things of value covered under the provision. The exclusion of arm’s length transactions or dealings involving nonmonetary benefits from the scope of the Foreign Emoluments Clause would run counter to the provision’s text, history, and underlying purpose, since such conduct could give rise to foreign influence and corruption.
5 David Robertson, Debates and other Proceedings of the Convention of Virginia 345 (2d ed. 1805) (1788). 6 David J. Barron, Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the
President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1, 4 (2009). 7 Morgan, Lewis & Bockius LLP, White Paper: Conflicts of Interest and the President, at 3-4, available at
https://assets.documentcloud.org/documents/3280261/MLB-White-Paper-1-10-Pm.pdf.
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24. With respect to determining which entities fall within the definition of a “foreign State” under the Foreign Emoluments Clause, the Office of Legal Counsel has consistently examined three non-dispositive factors, always with an eye toward the underlying purpose of preventing corruption and foreign influence: (a) “whether a government is the substantial source of funding for the entity”; (b) “whether a government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument”; and (c) “whether a government has an active role in the management of the entity.”8 It is widely accepted—and has been reaffirmed by the Office of Legal Counsel as recently as 2009—that a “foreign State” under the Foreign Emoluments Clause includes agents and instrumentalities of foreign nations.9
IV. RELEVANT FACTS A. Defendant’s Foreign Emoluments Clause Violations 25. Defendant owns and controls hundreds of businesses throughout the world, including hotels and other properties. His business empire is made up of hundreds of different corporations, limited-liability companies, limited partnerships, and other entities that he owns or controls, in whole or in part, operating in the United States and 20 or more foreign countries.10 Defendant’s businesses are loosely organized under an umbrella known as the “Trump Organization.” However, Defendant’s interests include not only Trump Organization LLC d/b/a The Trump Organization and The Trump Organization, Inc., both of which are owned solely by Defendant, but also scores of other entities not directly owned by either “Trump Organization” entity but that Defendant personally owns, owns through other entities, and/or
8 Barron, Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. at 8.
9 Id. at 7. 10 Marilyn Geewax & Maria Hollenhorst, Trump’s Businesses And Potential Conflicts: Sorting It Out, NPR (Dec. 5,
2016).
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controls.11 Defendant also has several licensing agreements that provide streams of income that continue over time. Through these entities and agreements, Defendant personally benefits from business dealings, and Defendant is and will be enriched by any business in which they engage with foreign governments and officials.
26. Since Defendant began running for President, the media has widely reported on these businesses and the conflicts of interest they pose. Significant portions of the coverage have focused on the secrecy surrounding Defendant’s business holdings, in part because Defendant has continuously refused to release his tax returns.12 After Defendant’s election on November 8, 2016, media reports about conflicts of interest intensified—countless articles explained the specifics of these conflicts in the run-up to Defendant’s inauguration.
27. Defendant, however, has denied the existence of these conflicts of interest. In an interview with The New York Times on November 22, 2016, Defendant stated that “the law is totally on my side, meaning, the president can’t have a conflict of interest.”13 At a press conference on January 11, 2017, nine days before his inauguration, Defendant again reiterated his belief that “I have a no-conflict situation because I’m president” and “I have a no conflict of interest provision as president.”14 Defendant’s attorney, at the same press conference, stated that “the so-called Emoluments Clause has never been interpreted . . . to apply to fair value exchanges that have absolutely nothing to do with an office holder” and, therefore, the
11 Donald J. Trump, 2016 Executive Branch Personnel Public Financial Disclosure Report (May 16, 2016), available at https://assets.documentcloud.org/documents/2838696/Trump-2016-Financial-Disclosure.pdf.
12 David Barstow et al., Donald Trump Tax Records Show He Could Have Avoided Taxes for Nearly Two Decades, The Times Found, N.Y. Times (Oct. 1, 2016).
13 Donald Trump’s New York Times Interview: Full Transcript, N.Y. Times (Nov. 23, 2016). 14 Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017).
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“Constitution does not require President-elect Trump to do anything here.”15 There is no law or constitutional provision that exempts the President from the Foreign Emoluments Clause.
28. While announcing at his January 11, 2017 press conference that he has a “noconflict situation” as President, Defendant nevertheless explained a plan to turn “leadership and management” of the Trump Organization over to his sons Eric Trump and Donald Trump Jr., as well as a longtime company executive.16 But the plan did not include Defendant relinquishing ownership of his businesses or establishing a blind trust. The plan also did not include any intention of seeking “the Consent of the Congress” with respect to Defendant’s business dealings, and Defendant has never received “the Consent of the Congress” with respect to any of his business transactions. In response to this plan, the director of the Office of Government Ethics immediately asserted that Defendant’s plan was inadequate: “[T]he plan does not comport with the tradition of our Presidents over the past 40 years. This isn’t the way the Presidency has worked since Congress passed the Ethics in Government Act in 1978 in the immediate aftermath of the Watergate scandal.”17
29. As a direct result of Defendant’s purposeful refusal to acknowledge that he is submerged in conflicts of interest and his purposeful refusal to take precautions necessary to avoid those conflicts, Defendant is now committing and is poised to continue to commit many violations of the Foreign Emoluments Clause—some documented, and others not yet apparent due to the complex and secretive nature of Defendant’s business holdings—during the opening moments of his presidency and continually thereafter. For example:
15 Id. 16 Id. 17 Remarks of Office of Government Ethics Director Walter M. Shaub, Jr., N.Y. Times (Jan. 11, 2017).
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New York’s Trump Tower 30. New York’s “Trump Tower” is a mixed-use skyscraper located at 725 Fifth
Avenue, New York, New York 10022. Through the use of various entities, Defendant owns and controls Trump Tower. Among the largest tenants of Trump Tower is the Industrial and Commercial Bank of China (ICBC), which is owned by a foreign nation, China.18 The ICBC’s lease is set to expire during Defendant’s term as President. In addition, the Abu Dhabi Tourism & Culture Authority, an entity owned by the foreign nation of the United Arab Emirates, leases office space in Trump Tower.19
31. Defendant regularly receives money—and, without judicial intervention, will continue to receive money during his presidency—through the leases that the ICBC and the Abu Dhabi Tourism & Culture Authority hold in Trump Tower. Now that he is President, Defendant’s acceptance of any such payments without congressional consent constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.” Moreover, the expected negotiation of a new lease in Trump Tower with the ICBC—or of any other lease in Trump Tower with a stateowned entity—presents an additional opportunity for Defendant to violate the Foreign Emoluments Clause. Washington, D.C.’s Trump International Hotel
32. The Trump International Hotel Washington, D.C. recently opened and is located at 1100 Pennsylvania Avenue N.W., Washington, D.C. 20004, just blocks from the White
18 Caleb Melby et al., When Chinese Bank’s Trump Lease Ends, Potential Conflict Begins, Bloomberg (Nov. 28, 2016). 19 Abu Dhabi Tourism & Culture Authority, Our Offices, available at
http://tcaabudhabi.ae/en/who.we.are/our.offices.aspx; María Villaseñor, Trump’s Comments Cost Him Money in Middle East, NBC News (Dec. 9, 2015).
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House. Defendant owns and controls this hotel through the use of various entities, and thus receives money each time someone stays in a room or pays for a venue or other goods or services in this hotel.
33. According to media reports, since the November 8, 2016 election, foreign diplomats have been flocking to Defendant’s D.C. hotel, eager to curry favor with Defendant and afraid of what Defendant may think or do if they send their business elsewhere in Washington.20 One week after the election, the hotel held a special event for the diplomatic community.21 About 100 foreign diplomats attended; they were greeted with champagne, food, a tour, a raffle for overnight stays at properties belonging to Defendant around the world, and a sales pitch about the new D.C. hotel.22 The hotel also hired a “director of diplomatic sales” to facilitate business with foreign states and their diplomats and agents, luring the director away from a competitor hotel in Washington.23 One “Middle Eastern diplomat” told The Washington Post about the hotel: “Believe me, all the delegations will go there.”24 An “Asian diplomat” explained: “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’”25
34. The Embassy of Kuwait is scheduled to hold its National Day celebration at Defendant’s Washington, D.C. hotel on February 25, 2017.26 A portion of the funds to pay for
20 Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump hotel is place to be, Wash. Post (Nov. 18, 2016); see also Eric Lipton & Susanne Craig, At Trump Hotel in Washington, Champagne Toasts in an Ethical ‘Minefield’, N.Y. Times (Jan. 19, 2017).
21 O’Connell & Jordan, For foreign diplomats, Trump hotel is place to be. 22 Id. 23 Id. 24 Id. 25 Id. 26 Jonathan O’Connell, Kuwaiti Embassy is latest to book Trump D.C. hotel, but ambassador says he felt ‘no pressure’,
Wash. Post (Dec. 20, 2016).
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this Kuwaiti celebration will go directly to Defendant while he is President. According to one media report, the Embassy of Kuwait moved the event from a competitor hotel under pressure from the Trump Organization (though Kuwait’s ambassador to the United States denied being pressured).27 Bahrain also booked a venue at Defendant’s D.C. hotel for a National Day celebration in December 2016,28 and Azerbaijan co-hosted a Hanukkah party at the hotel in December 2016.29
35. Defendant regularly receives money—and, without judicial intervention, will continue to receive money during his presidency—each time a foreign state, a foreign diplomat, some other agent of a foreign state, or some other instrumentality of a foreign nation stays in a room or pays for a venue or other service in Defendant’s D.C. hotel. Now that he is President, Defendant’s acceptance of any such payments without congressional consent, including for inauguration-related reservations, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from an agent or instrumentality of, or directly from, a “foreign State,” without “the Consent of the Congress.”
36. During Defendant’s January 11, 2017 press conference, Defendant’s attorney announced that Defendant “is going to voluntarily donate all profits from foreign government payments made to his hotel to the United States Treasury.”30 But this proposal, if realized, would not remedy Defendant’s Foreign Emoluments Clause violations; the Constitution provides for no such exception or remedy to this clause. And, even if such an exception or remedy were
27 Judd Legum & Kira Lerner, Under political pressure, Kuwait cancels major events at Four Seasons, switches to Trump’s D.C. hotel, ThinkProgress (Dec. 19, 2016).
28 Nolan D. McCaskill & Madeline Conway, Bahrain to host event at Trump’s D.C. hotel, raising ethical concerns, Politico (Nov. 29, 2016).
29 Brent Griffiths & Kenneth P. Vogel, Embassy of Azerbaijan to co-host event at Trump’s D.C. hotel, Politico (Dec. 5, 2016).
30 Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017).
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included in the Constitution (it is not), Defendant’s plan would be insufficient in that: (a) it contains no monitoring or enforcement mechanism; (b) it calls merely for turning over profits, not all funds received from foreign governments; and (c) it does not address Defendant’s continuing ownership of the hotel, and thus does not aid the underlying purpose of the Foreign Emoluments Clause, preventing foreign influence and corruption. Other Domestic And International Properties And Businesses
37. As noted in Defendant’s financial-disclosure report, Defendant owns, operates, and licenses numerous other businesses throughout the United States and abroad, including other hotels, other properties for sale or lease, and golf courses and clubs.31 Defendant regularly receives money—and, without judicial intervention, will continue to receive money during his presidency—through transactions involving these many other properties and businesses. Now that he is President, Defendant’s acceptance of any such payments from foreign states or their instrumentalities or agents without congressional consent constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.” International Versions And Distribution Of “The Apprentice” And Its Spinoffs
38. Defendant earns royalties and other payments from the distribution in other countries of the television program “The Apprentice” and its spinoffs (including “The Celebrity Apprentice” and “The New Celebrity Apprentice,” for which Defendant is still an executive producer), as well as from international versions of the programs produced in other countries. In some instances, these payments originate from foreign governments or their agents or
31 Donald J. Trump, 2016 Executive Branch Personnel Public Financial Disclosure Report, available at https://assets.documentcloud.org/documents/2838696/Trump-2016-Financial-Disclosure.pdf.
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instrumentalities. For instance, there are iterations of the program “The Apprentice,” for which Defendant is paid, in the United Kingdom and Vietnam,32 and in both countries those programs air on foreign-government-owned broadcast stations.
39. Defendant regularly receives money—and, without judicial intervention, will continue to receive money during his presidency—through transactions involving the television programs “The Apprentice” and its spinoffs and international versions. Now that he is President, Defendant’s acceptance of any such payments from foreign states or their agents or instrumentalities without congressional consent constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.” Other Foreign Connections, Properties, And Businesses
40. China: Defendant’s company has plans to build 20 to 30 luxury hotels in China,33 which will require obtaining benefits from the Chinese government, such as permits and approvals. Defendant also is part owner of an office building located at 1290 Avenue of the Americas in New York, New York, which carries a $950 million loan, part of which is held by the Chinese-government-owned Bank of China.34 Now that Defendant is President, his company’s acceptance of any benefits from the Chinese government—including permits or approvals for property in China, or additional money or a renegotiation or forgiveness of a loan from the Bank of China—or anything else of value from that or any other foreign government in connection
32 Madeline Berg, Here’s How Much Donald Trump Will Earn From Producing ‘Celebrity Apprentice’, Forbes (Dec. 13 2016).
33 Rob Schmitz, Trump’s Hotels In China Could Be A Conflict For The President-Elect, NPR (Nov. 24, 2016); Simon Denyer & Jonathan O’Connell, Trump Hotels has had its eye on China—but the door hasn’t opened, Wash. Post (Dec. 26, 2016).
34 Susanne Craig, Trump’s Empire: A Maze of Debts and Opaque Ties, N.Y. Times (Aug. 20, 2016).
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with Defendant’s Chinese business interests, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
41. India: Defendant’s company is engaged in many real-estate projects in India, which will require benefits from the Indian government, such as permits and approvals.35 Now that Defendant is President, his company’s acceptance of any such benefits from the Indian government, or anything else of value from that or any other foreign government in connection with Defendant’s Indian business interests, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
42. United Arab Emirates: Defendant’s company is engaged in several real estate projects in the United Arab Emirates (UAE), including Dubai’s Trump International Golf Club, which is set to open in February 2017. All services for the golf club, including electricity, water, and roads, “come at the discretion of the government,” and the “club’s bar will need government approvals to serve alcohol, not to mention other regulatory issues.”36 Now that Defendant is President, his company’s acceptance of any permits or approvals from the UAE’s government, or anything else of value from that or any other foreign government in connection with Defendant’s UAE business interests, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is
35 Richard C. Paddock et al., Potential Conflicts Around the Globe for Trump, the Businessman President, N.Y. Times (Nov. 26, 2016).
36 Jon Gambrell, Trump’s New Dubai Golf Club Shows Pitfalls of His Presidency, Associated Press (Jan. 3, 2017).
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“accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
43. Indonesia: Defendant’s company is engaged in at least two real estate projects in Indonesia. As part of this effort, Defendant reportedly has “forged relationships with powerful political figures in Indonesia, where such connections are crucial to pushing through big projects.”37 Now that Defendant is President, his company’s acceptance from the Indonesian government of any permits, approvals, or other benefits as part of “pushing through big projects,” or his company’s acceptance of anything else of value from that or any other foreign government in connection with Defendant’s Indonesian business interests, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
44. Turkey: Defendant’s company is involved in a major licensing deal in Turkey for the Trump Towers Istanbul. Defendant himself has admitted that his business interests in Turkey present ethical problems: “I have a little conflict of interest ’cause I have a major, major building in Istanbul.”38 Already, that deal has entered the political arena—Turkey’s president called for Defendant’s name to be removed from towers in Istanbul last year after Defendant proposed a Muslim ban, but there has been no mention of the threat since Defendant publicly defended Turkey’s president one month later.39 Now that Defendant is President, his company’s acceptance of any permits, approvals, or other benefits from the Turkish government as part of Defendant’s ongoing licensing deal, or his company’s acceptance of anything else of value from
37 Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016).
38 Pema Levy, Trump Admitted to a Conflict of Interest in Turkey, Mother Jones (Nov. 15, 2016). 39 Tim Mak, Donald Trump’s Huge Conflict of Interest in Turkey, Daily Beast (Dec. 7, 2016).
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that or any other foreign government in connection with Defendant’s Turkish business interests, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
45. Scotland: Defendant owns Trump Turnberry, a golf course and resort in Turnberry, Scotland, and Trump International Golf Links – Scotland, a golf course and resort in Aberdeenshire, Scotland. Defendant’s golf courses and resorts receive support from VisitScotland, Scotland’s official tourism agency.40 Shortly after the November 2016 election, Defendant met with Nigel Farage, an English politician who is a member of the European Parliament and former leader of the UK Independence Party, and asked him to help oppose the type of offshore wind turbines that, according to Defendant, spoil the views at his Aberdeenshire golf course.41 In January 2017, reports came out that Defendant’s Aberdeenshire golf operation was expanding, with a second 18-hole golf course and a new 450-room five-star hotel, timeshare complex and private housing estate.42 Now that Defendant is President, his company’s acceptance from the Scottish or United Kingdom governments of any permits, approvals, or other benefits in connection with his golf operations, or his company’s acceptance of anything else of value from those or any other foreign government in connection with Defendant’s business interests in Scotland, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
40 Severin Carrell, Trump could use UK trade deal to boost golf resorts, say former ethics officials, Guardian (Jan. 17, 2017).
41 Danny Hakim & Eric Lipton, With a Meeting, Trump Renewed a British Wind Farm Fight, N.Y. Times (Nov. 21, 2016).
42 Severin Carrell, Trump’s Scotland golf resort proceeds with expansion despite business pledge, Guardian (Jan. 14, 2017).
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46. Philippines: Defendant’s business partner in the Philippines, Jose E.B. Antonio, was named a special envoy to the United States shortly before Defendant’s election. Defendant’s name is on a new apartment building that Antonio’s company is constructing in the Philippines, the Trump Tower at Century City.43 Now that Defendant is President, his company’s acceptance from the Philippines’ government of any permits, approvals, or other benefits as part of Defendant’s ongoing interest in the Trump Tower at Century City, or his company’s acceptance of anything else of value from that or any other foreign government in connection with Defendant’s business interests in the Philippines, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
47. Russia: According to media reports, “[t]here is strong evidence that Trump’s businesses have received significant funding from Russian investors.”44 As Defendant’s son Donald Trump Jr. stated in 2008: “Russians make up a pretty disproportionate cross-section of a lot of our assets. . . . We see a lot of money pouring in from Russia.”45 Defendant has been seeking business and development opportunities in Russia for at least three decades, including in 2013, when he wrote on Twitter: “TRUMP TOWER-MOSCOW is next.”46 Now that Defendant is President, his company’s acceptance of any investment money, benefits, or anything else of value from the Russian government or any agent or instrumentality thereof, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a
43 Richard C. Paddock, Trump Business Partner Is Philippines’ New Trade Envoy to U.S., N.Y. Times (Nov. 9, 2016). 44 Rosalind S. Helderman, Here’s what we know about Donald Trump and his ties to Russia, Wash. Post (July 29,
2016). 45 Darren Samuelsohn, Trump’s vast web of conflicts: A user’s guide, Politico (Nov. 16, 2016). 46 Megan Twohey & Steve Eder, For Trump, Three Decades of Chasing Deals in Russia, N.Y. Times (Jan. 16, 2017).
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“Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
48. Saudi Arabia: Defendant recently created several companies that appear to be designed to help develop real estate and hotels in Jeddah, the second-largest city in Saudi Arabia (though it is unclear how many of those companies remain in business).47 Moreover, in 2001, Defendant sold a floor of a building he owns, the Trump World Tower in New York, New York, to the Kingdom of Saudi Arabia. At the time of the sale, yearly common charges for building amenities for the floor totaled $85,585. The floor currently belongs to the Saudi Mission to the United Nations,48 which presumably still must pay yearly common charges to Defendant’s company. Now that Defendant is President, his company’s acceptance of any benefits, any money, or anything else of value from the Saudi Arabian government or any agent or instrumentality thereof, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” or its agent or instrumentality without “the Consent of the Congress.”
49. Taiwan: In September 2016, Defendant’s business reportedly sent a representative to Taiwan to discuss investment opportunities in a government-run development project, which would require government approval to complete.49 Less than three months later, Defendant made international news when he received a congratulatory call from Taiwan’s president, in what is believed to be the first call in nearly four decades between a Taiwanese
47 Drew Harwell & Anu Narayanswamy, A scramble to assess the dangers of President-elect Donald Trump’s global business empire, Wash. Post (Nov. 20, 2016).
48 Stephen Rex Brown, EXCLUSIVE: Donald Trump made millions from Saudi Arabia, but trashes Hillary Clinton for Saudi donations to Clinton Foundation, N.Y. Daily News (Sept. 4, 2016).
49 Michael Forsythe, Taiwan City Planning a Makeover Says a Trump Agent Showed Interest, N.Y. Times (Dec. 4, 2016).
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leader and the U.S. President or President-Elect. Now that Defendant is President, his company’s acceptance of any permits or approvals from Taiwan’s government, or anything else of value from that or any other foreign government in connection with Defendant’s business interests in Taiwan, without congressional consent, constitutes a violation of the Foreign Emoluments Clause; Defendant, as a “Person holding any Office of Profit or Trust,” is “accept[ing]” an “Emolument” from a “foreign State” without “the Consent of the Congress.” Domestic Emoluments Clause
50. Many of the above-mentioned business interests also likely cause Defendant to run afoul of Article II, Section 1, Clause 7 of the U.S. Constitution, the “Domestic Emoluments Clause,”50 which states: “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” This clause, which prevents Defendant from receiving any “Emolument” from the United States or any individual state, is violated as a result of Defendant’s ownership interests in various properties and businesses, both foreign and domestic, for which Defendant receives some form of monetary or nonmonetary payment or benefit from the U.S. government or state governments. In these situations, Defendant is “receiv[ing],” within “the Period for which he shall have been elected,” an “Emolument from the United States, or any of them.”
50 This provision is also referred to as the “Presidential Emoluments Clause.” Moreover, while it was originally designated as Article II, Section 1, Clause 7, it is now sometimes referred to as Article II, Section 1, Clause 6, due to the supersedure of the original third clause of Article II, Section 1 by the Twelfth Amendment.
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B. CREW’s Primary Injuries 51. Defendant’s violations of the Foreign Emoluments Clause have required CREW
to divert and expend its valuable resources specifically to counteract those violations, impairing CREW’s ability to accomplish its mission. CREW has had to counteract Defendant’s violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and mission that it has.
52. There is a direct conflict between Defendant’s violations of the Foreign Emoluments Clause and CREW’s mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant’s violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President’s motives in making foreign-policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.
53. CREW has expended a significant amount of time and resources since the election educating the public about the Foreign Emoluments Clause and Defendant’s violations of it. CREW has received hundreds of requests from the media about Defendant’s conflicts of interest, including dozens regarding the Foreign Emoluments Clause and Defendant’s violations of it. Many of these media requests sought explanations of the clause and its applicability, and CREW has spent a substantial number of hours responding to them. As a result of these efforts to educate the public, members of CREW’s staff and its board of directors repeatedly have been interviewed by and quoted in the news media discussing the Foreign Emoluments Clause and Defendant’s violations of it. These media requests are certain to continue, and CREW will continue to need to expend time and resources to respond to them.
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54. CREW regularly issues press releases and statements, and responds to requests for information and comments from the media on a range of topics, including but not limited to ethics, corruption, campaign finance, and accountability. Both before and after the election, CREW received hundreds of questions from the news media about Defendant’s businesses and conflicts of interest, including dozens related to the Foreign Emoluments Clause. CREW has diverted its time and resources from its public-education activities to respond to these questions. CREW normally responds to nearly every press request. However, due to the volume of requests from national news media about Defendant’s conflicts of interest, including his Foreign Emoluments Clause violations, CREW has not had the time and resources to respond to requests from many smaller and regional outlets regarding, for example, local money in politics issues and congressional ethics issues.
55. CREW’s in-house attorneys have diverted their time and resources from other projects to counteract Defendant’s violations of the Foreign Emoluments Clause. Since the election, CREW has received numerous requests for information and guidance about the Foreign Emoluments Clause from policymakers. To respond to those requests, and as part of CREW’s advocacy in support of its mission of ensuring the integrity of government officials, CREW has expended significant resources conducting legal research regarding the history and scope of the Foreign Emoluments Clause. Moreover, CREW’s attorneys, including its executive director, have spent a significant amount of time on phone calls and meetings responding to those inquires.
56. CREW’s attorneys also have conducted legal research to respond to many of the requests for information from the news media regarding the Foreign Emoluments Clause. In addition, CREW’s attorneys and researchers have assisted in researching and drafting publications educating the public about the clause and the impact of Defendant’s violations of it.
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57. CREW also has conducted extensive legal research and analysis of potential legal actions to counteract Defendant’s violations of the Foreign Emoluments Clause. CREW’s attorneys have researched and analyzed potential lawsuits that could be used to enforce the clause, drafted this complaint, and expended resources to file it. CREW’s attorneys also have researched and analyzed the potential for filing complaints with government agencies. CREW further has filed Freedom of Information Act requests to obtain records related to potential violations of the Foreign Emoluments Clause.
58. In addition, due in part to the volume of legal issues related to Defendant’s conflicts of interest, including the need to counteract his violations of the Foreign Emoluments Clause, CREW hired a new senior attorney in December 2016 to strengthen CREW’s ability to address these issues.
59. This use of time and resources on legal matters related to Defendant’s violations of the Foreign Emoluments Clause is certain to continue. In addition to needing to monitor Defendant’s business interests for potential violations, CREW attorneys will, among other things, continue to need to evaluate payments to Defendant’s hotels and other business interests to determine if they violate the clause; research and analyze possible legal actions; and draft, file, and potentially litigate related Freedom of Information Act requests.
60. The time and resources CREW has used and will continue to use to counteract Defendant’s violations of the Foreign Emoluments Clause were and will continue to be diverted from other legal projects and activities in which CREW would have otherwise engaged.
61. In the months immediately following elections, CREW regularly has drafted and filed complaints for violations of campaign finance and other laws related to political activity. In January 2013, for example, CREW filed complaints with the Federal Election Commission (FEC) and the Department of Justice (DOJ) alleging that several individuals, companies, and a
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super PAC made and accepted an illegal $1 million conduit contribution during the 2012 election.51 CREW also filed FEC and DOJ complaints in November 2012 against a section 501(c)(4) “dark money” organization for failing to disclose the identities of donors who contributed $6 million to fund campaign advertisements in Ohio during the 2012 campaign.52 Similarly, in November 2014, CREW filed a complaint with the IRS against another section 501(c)(4) organization that violated its tax-exempt status by operating almost entirely for the private benefit of a political candidate and public official by spending nearly all of its money in 2013 and 2014 on advertisements that either directly supported the candidate’s reelection or heaped praise on him in a transparent attempt to boost his political advancement and agenda.53
62. During the 2016 election, CREW continued to track the spending and activities of candidates and outside groups engaged in politics, and intended to review campaign finance and tax records following the election. CREW expected to continue conducting that research after the election and to file complaints against several organizations regarding their compliance with campaign finance and tax law. Although CREW has been able to expend some resources on these activities and did file one complaint it drafted before the election, it has not been able to complete the research or draft and file other complaints in part because it needed to divert time and resources to counteract Defendant’s violations of the Foreign Emoluments Clause.
63. In recent years, CREW has pursued a project related to campaign finance and ethics in the states. Work on that project has included, among other things, monthly
51 CREW Files DOJ, FEC Complaints Against Payday Lender For Illegal Conduit Contribution to Super PAC (Jan. 8, 2013), available at http://www.citizensforethics.org/legal-filling/crew-files-doj-fec-complaint-payday-lenderconduit-contribution-super-pac/.
52 CREW Files FEC Complaint Against Crossroads GPS For Failing to Disclose Donors (Nov. 15, 2012), available at http://www.citizensforethics.org/legal-filling/crew-files-fec-complaint-crossroads-gps-failing-to-disclosedonors/.
53 CREW Files IRS Complaint Against the Kentucky Opportunity Coalition (Nov. 24, 2014), available at http://www.citizensforethics.org/legal-filling/crew-files-irs-complaint-against-kentucky-opportunitycoalition/.
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concentrated periods for CREW staff to conduct research and explore potential legal actions. CREW has not been able to conduct many aspects of this project, including the monthly staff work periods, since just after the 2016 election due to the need to divert its time and resources to responding to Defendant’s conflicts of interests, including his violations of the Foreign Emoluments Clause. CREW does not expect to have the resources to conduct these activities in the foreseeable future.
64. CREW also researches, drafts, and files comments with government agencies related to rulemakings and other regulatory actions. For example, in the months following the 2014 elections, CREW drafted comments in response to an FEC rulemaking notice,54 and filed the comments in January 2015.55 Following the 2016 elections, several FEC rulemaking comment periods were open. CREW considered filing comments in these proceedings, but did not do so due to the need to divert its time and resources to responding to Defendant’s conflicts of interests, including his violations of the Foreign Emoluments Clause.
65. Defendant’s violations of the Foreign Emoluments Clause also have required CREW to expend a significant amount of time and resources to research and monitor Defendant’s business interests. Since the November 2016 election, CREW researchers have dedicated significant time and effort to developing a comprehensive understanding of Defendant’s business empire and conflicts of interest, particularly regarding his business ties to foreign companies and governments that run a particularly strong risk of resulting in a violation of the Foreign Emoluments Clause. For example, CREW researchers have compiled and analyzed data regarding the more than 500 business entities Defendant listed on his 2016
54 FEC, Advance Notice of Proposed Rulemaking, Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues, 79 Fed. Reg. 62361 (Oct. 17, 2014) (REG 2014-01).
55 CREW to FEC: Comments on Addressing Corruption and Deficiencies in Disclosure (Jan. 15, 2015), available at http://www.citizensforethics.org/legal-filling/crew-to-fec-comments-on-addressing-corruption-anddeficiencies-in-disclosur/.
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personal financial-disclosure form, developing that information for both internal and external uses. This project began on November 28, 2016 and is not yet fully completed. Every member of CREW’s research team has worked on this project on a near-daily basis.
66. This project was launched in part to aid in responding to questions from the news media about the extent of Defendant’s business dealings. As explained above, CREW has received hundreds of questions from the news media about Defendant’s businesses, including his foreign businesses, and CREW determined that a comprehensive internal resource was necessary to help answer those questions.
67. As a result of Defendant’s decision to not divest himself from his properties and business interests, CREW will need to continue to expend significant time and resources to research and monitor Defendant’s Foreign Emoluments Clause violations. As part of its mission, CREW will need to research and monitor Defendant’s businesses to determine if he receives any foreign emoluments through them. Payments to his businesses, however, are rarely public, requiring CREW to expend resources to uncover them. Also as part of its mission, CREW will need to monitor Defendant’s attorney’s pledge to “donate all profits from foreign government payments made to his hotel to the United States Treasury,” even though, as noted above, that pledge is not an actual remedy for the Foreign Emoluments Clause violations taking place. Again, this will require significant time and resources as payments to hotels and other business entities are rarely public, and neither Defendant nor his attorney announced any system for transparency or accountability for these or any other foreign payments. Further, Defendant has intentionally made it more difficult to obtain information about foreign payments. Defendant,
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for instance, has refused to release his tax returns, and, according to media reports, the press was banned from his D.C. hotel during the week of the inauguration.56
68. The time and resources CREW has used and will continue to use to research Defendant’s business interests related to violations of the Foreign Emoluments Clause were and will continue to be diverted from other research projects and activities in which CREW would have otherwise engaged. In the months immediately following elections, CREW traditionally has produced research and reports looking back at money-in-politics issues and players in that election cycle. In December 2012, for example, CREW published Stealth Donors, a report on donors who gave more than $1 million to super PACs trying to influence the 2012 election but whose efforts to sway voters were largely out of the public view.57 CREW similarly researched and published in December 2014 a series of blog posts on “dead-end disclosure,” practices used to keep secret the identities of donors who give money to outside groups attempting to influence elections.58
69. CREW intended to conduct similar research and analysis on campaign-finance issues in the aftermath of the 2016 election and expected to publish the results, but has not had time and resources to follow through on these plans or develop other evaluations of spending in the 2016 election. Instead, CREW needed to divert its resources to research and analyze Defendant’s business interests, particularly those related to violations of the Foreign Emoluments Clause. In early 2016, for example, CREW published a report on the post-2014 election
56 Daniel Lippman, Trump’s D.C. hotel bans press during inauguration week, Politico (Jan. 18, 2017). 57 Stealth Donors (Dec. 3, 2012), available at http://www.citizensforethics.org/stealth-donors-report-super-pac-
under-the-radar/. 58 Matt Corley & David Crockett, CREW Series: Dead End Disclosure in the 2014 Elections (Dec. 15, 2014), available
at http://www.citizensforethics.org/crew-series-dead-end-disclosure-in-the-2014-elections/.
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contributions to new members of Congress by special interest PACs.59 CREW intended to review similar post-election campaign contributions to newly elected members in December 2016 and likely would have published a follow-up report, but did not do so due to the need to commit resources to researching Defendant’s business interests.
70. CREW also normally obtains and analyzes tax returns of nonprofit groups engaged in political activities starting in the middle of November, when most of those tax returns are filed with the IRS. In past years, that research and analysis regularly has resulted in reports to educate the public, and sometimes in complaints to the IRS. In November and December 2014, for instance, CREW published two blog posts based on findings from new nonprofit tax returns filed that November,60 and similarly published a blog post in November 2015 based on a nonprofit tax form filed that November.61 Although CREW was able to send requests to the IRS for nonprofit tax forms filed in November 2016, it has not been able to devote as much time or resources to analyzing and subsequently writing about the information in tax returns obtained and published by other sources. As a result, for example, for the first time since 2013, CREW has not published any analysis of the annual tax form filed by Freedom Partners Chamber of Commerce, a critical component in a network of politically active nonprofit groups.
71. In addition to the diversion and depletion of CREW’s resources, CREW is further injured because Defendant’s violations of the Foreign Emoluments Clause increase the costs to
59 Welcome to Washington: New Members of Congress Attract Special Interest Money (May 9, 2016), available at http://www.citizensforethics.org/press-release/crew-issues-major-report-special-interest-fundraisingfreshman-congressmen/.
60 Matt Corley, Crossroads GPS and Kentucky Opportunity Coalition Have, Word for Word, the Same Mission (Nov. 20, 2014), available at http://www.citizensforethics.org/crossroads-gps-kentucky-opportunity-coalition-have-thesame-mission/; Dr. Evil Meets the Kochtopus: Americans for Prosperity Now Supporting Berman Group (Dec. 2, 2014), available at http://www.citizensforethics.org/dr-evil-meets-kochtopus-americans-for-prosperity-supportingberman-group/.
61 Matt Corley, Freedom Partners Admits Issue Ads Are Aimed At Influencing Elections (Nov. 19, 2015), available at http://www.citizensforethics.org/freedom-partners-admits-issue-ads-are-aimed-at-influencing-elections/.
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CREW to carry out its mission in the normal course of business. By accepting foreign emoluments through nonpublic channels, Defendant’s violations will deprive CREW of information about financial support Defendant will be receiving from foreign governments, forcing CREW to expend resources to uncover his Foreign Emoluments Clause violations. In the course of CREW’s normal activities and in order to carry out CREW’s mission, CREW obtains information about financial support received by a public official or candidate from public records and filings such as campaign-finance reports and personal financial disclosure forms. Such disclosures allow CREW to monitor public corruption and inform the public about conflicts of interest. Emoluments provided to Defendant through his businesses, however, will rarely be public—especially since Defendant has eschewed mechanisms for transparency, such as releasing tax returns—and CREW will need to expend significant resources to uncover those payments. For example, a foreign country’s payments for an opulent reception at a hotel owned by Defendant or the terms of a lease for a foreign-state-owned bank at a building he owns are not public information. To try to determine if Defendant is receiving prohibited foreign emoluments that raise concerns of corruption and conflicts of interest, and in order for CREW to continue to carry out its mission in the normal course of business, CREW has needed and will need to continue expending significant resources far in excess of those required if money transfers to Defendant occurred through more traditional and transparent means.
72. Except for those expenses involved in preparing for this specific litigation, CREW would have suffered the injuries described even if it had not filed this case.
73. The declaratory and injunctive relief that CREW is seeking would provide a remedy for the many injuries described above. If such relief is granted, resolving the disputes between CREW and Defendant over the Foreign Emoluments Clause and enjoining Defendant
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from violating the Foreign Emoluments Clause, CREW would no longer suffer the diversion and depletion of resources described above. C. Other Injuries
74. Beyond the injuries described above that CREW would have suffered even if it had not filed this case, Defendant’s unconstitutional conduct has caused added financial costs and greater logistical difficulties with respect to informing—and helping to protect from corrupt and unethical manipulation—innocent and unaware third parties, including consumers, workers, and small businesses. As the Executive Branch, led by Defendant, shapes the strategy, substance, and timing of its trade and other commercial and financial negotiations with foreign governments, these third parties are at risk of having their economic interests and financial welfare bartered away, with Defendant rewarding foreign governments in connection with his own business interests.
75. With CREW’s efforts to educate these unknowing third parties obstructed, the consumers, workers, and small businesses will remain in the dark about the conflicting, dual roles that Defendant plays in negotiating with foreign governments, as President and businessman.
76. Competitors of Defendant’s hotels, golf courses, and other properties and businesses also are injured, financially, by the uneven and unfair playing field created by Defendant’s unconstitutional conduct. Those injuries occur both when the competitors lose business directly to Defendant’s businesses and when the competitors’ brands lose economic value in comparison with the enhanced value of Defendant’s brands, all due to foreign governments and their agents and instrumentalities seeking to curry favor with Defendant by favoring his businesses.
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V. CLAIMS COUNT I Violations of the Foreign Emoluments Clause (Injunctive Relief) 77. CREW realleges and incorporates herein by reference each and every foregoing paragraph of this Complaint as if set forth in full. 78. Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause. 79. Together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including money, permits, approvals, tax benefits, any other benefits, and anything else monetary or nonmonetary, regardless of whether it is given in exchange for goods or services, and regardless of whether it is part of a transaction at, above, or below market rates. 80. The phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof. 81. Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” constitutes a violation of the Foreign Emoluments Clause. 82. As described more fully in paragraphs 25-49 herein, Defendant has committed violations of the Foreign Emoluments Clause and, without this Court’s intervention, will continue to commit violations of the Foreign Emoluments Clause. Defendant is and will be accepting “present[s]” or “Emolument[s]” directly from—or from agents or instrumentalities of—China, the United Arab Emirates, Kuwait, India, Indonesia, Turkey, Scotland, the Philippines, Russia, Saudi Arabia, Taiwan, and other “foreign State[s],” without seeking or
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obtaining “the Consent of the Congress.” As described more fully in paragraphs 25-49 herein, Defendant is committing or will commit these violations in connection with transactions involving New York’s Trump Tower, the Trump International Hotel Washington, D.C., the television program “The Apprentice” and its spinoffs and international versions, and other business and property interests and transactions in the United States and abroad.
83. No proposed plan announced by Defendant or his attorneys can make this conduct constitutional or otherwise remedy these constitutional violations.
84. As a direct result of these violations of the Foreign Emoluments Clause, CREW has already suffered significant harm. CREW also stands to suffer additional significant harm directly from the further occurrence of these violations.
85. CREW is entitled to bring this action pursuant to this Court’s inherent ability to award equitable relief where a federal official violates or is about to violate the U.S. Constitution or federal law.
86. CREW is entitled to injunctive relief to stop and prevent the above-mentioned Foreign Emoluments Clause violations and any other Foreign Emoluments Clause violations. This Court has the power to grant such relief pursuant to its inherent ability to grant equitable relief and 28 U.S.C. § 1331. Such relief would enjoin Defendant from violating the Foreign Emoluments Clause, as construed by this Court. Without such relief, CREW will suffer significant injury.
COUNT II Violations of the Foreign Emoluments Clause
(Declaratory Relief) 87. CREW realleges and incorporates herein by reference each and every foregoing paragraph of this Complaint as if set forth in full.
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88. There is an actual controversy between CREW and Defendant as to the meaning of the Foreign Emoluments Clause and its application to Defendant and his conduct. Specifically, CREW has taken the positions that: (a) Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause; (b) together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including money, permits, approvals, tax benefits, any other benefits, and anything else monetary or nonmonetary, regardless of whether it is given in exchange for goods or services, and regardless of whether it is part of a transaction at, above, or below market rates; (c) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; and (d) Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” constitutes a violation of the Foreign Emoluments Clause. CREW also has taken the positions that Defendant, through the conduct described more fully in paragraphs 25-49 herein, is violating or will violate the Foreign Emoluments Clause, and that no proposed plan announced by Defendant or his attorneys can make this conduct constitutional or otherwise remedy these constitutional violations. Defendant disagrees with each of these positions.
89. CREW is entitled to declaratory relief under 28 U.S.C. § 2201. A declaration resolving the actual controversy between CREW and Defendant—as to the meaning of the Foreign Emoluments Clause and whether Defendant’s conduct is violating and will violate the Foreign Emoluments Clause—will serve a useful purpose in settling the legal issues in this action and offering relief from uncertainty. Without this relief, CREW will continue to suffer significant injury.
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VI. PRAYER FOR RELIEF WHEREFORE, CREW respectfully requests that this Court enter a judgment in CREW’s favor and against Defendant, consisting of: (a) A declaratory judgment, stating that: (1) Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause; (2) together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including money, permits, approvals, tax benefits, any other benefits, and anything else monetary or nonmonetary, regardless of whether it is given in exchange for goods or services, and regardless of whether it is part of a transaction at, above, or below market rates; (3) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; (4) Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” constitutes a violation of the Foreign Emoluments Clause; (5) Defendant’s conduct, as described more fully in paragraphs 25-49 herein, is violating or will violate the Foreign Emoluments Clause; and (6) no proposed plan announced by Defendant or his attorneys can make this conduct constitutional or otherwise remedy these constitutional violations.
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(b) Injunctive relief, enjoining Defendant from violating the Foreign Emoluments Clause, as construed by this Court;
(c) Such other and further relief as this Court may deem just and proper, including reasonable attorneys’ fees and costs under 28 U.S.C. § 2412(a) and (d) or as otherwise appropriate.

Dated: New York, New York January 23, 2017

GUPTA WESSLER PLLC

By: s/Matthew Spurlock Matthew Spurlock

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767
ERWIN CHEMERINSKY* Dean of the School of Law University of California, Irvine 401 East Peltason Drive Irvine, CA 92697 (949) 824-7722
ZEPHYR TEACHOUT* Associate Professor of Law Fordham Law School 150 West 62nd Street New York, NY 12580 (646) 312-8722
*Affiliations noted for identification purposes only

AMBASSADOR (RET.) NORMAN L. EISEN Chair, Board of Directors RICHARD W. PAINTER Vice Chair, Board of Directors NOAH BOOKBINDER ADAM J. RAPPAPORT STUART C. MCPHAIL Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W., 6th Floor Washington, DC 20001 (202) 408-5565
DEEPAK GUPTA JONATHAN E. TAYLOR RACHEL S. BLOOMEKATZ MATTHEW SPURLOCK Gupta Wessler PLLC 1735 20th Street, N.W. Washington, DC 20009 (202) 888-1741 deepak@guptawessler.com spurlock@guptawessler.com
Attorneys for Plaintiff Citizens for Responsibility and Ethics in Washington

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 Case 1:17-cv-00458-GBD Document 28 Filed 05/10/17 Page 1 of 68

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant.

Civil Action No. 1:17-cv-00458-RA

SECOND AMENDED COMPLAINT

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TABLE OF CONTENTS
I. NATURE OF THE ACTION .......................................................................................... 1
II. PARTIES, JURISDICTION, AND VENUE ................................................................... 8
III. LEGAL BACKGROUND ............................................................................................... 11
IV. RELEVANT FACTS ....................................................................................................... 14 A. Defendant’s Foreign Emoluments Clause Violations ........................................... 14 New York’s Trump Tower .......................................................................... 16 Washington, D.C.’s Trump International Hotel ......................................... 18 Trump World Tower ................................................................................... 23 Gratuitous Chinese Trademarks.................................................................. 26 International Versions and Distribution of “The Apprentice” and Its Spinoffs......................................................................................................... 28 Other Foreign Connections, Properties, and Businesses ............................. 28 Other Domestic and International Properties and Businesses..................... 30 B. Defendant’s Domestic Emoluments Clause Violations ........................................ 30 C. Post-Inauguration Premium for Defendant’s Goods and Services ....................... 34 D. CREW’s Injuries ................................................................................................... 34 Diversion of CREW’s Communications Resources .................................... 35 Diversion of CREW’s Legal Resources ....................................................... 36 Diversion of CREW’s Research Resources ................................................. 39 Perceptible Impairment of CREW’s Programmatic Functions and Fundamental Services .................................................................................. 43 E. ROC United’s Members’ Injuries ........................................................................ 45 Injuries to ROC United’s Restaurant Members ......................................... 47 Injuries to ROC United’s Worker Members ............................................... 50 Injuries to ROC United’s COLORS Restaurants....................................... 52 F. Jill Phaneuf’s Injuries ............................................................................................ 53 G. Eric Goode’s Injuries ............................................................................................ 54 I. Plaintiffs’ Injuries Warrant an Equitable Remedy................................................ 56 J. Other Injuries........................................................................................................ 58
V. CLAIMS ........................................................................................................................... 59
VI. PRAYER FOR RELIEF .................................................................................................. 66
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Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers

(ROC) United, Inc., Jill Phaneuf, and Eric Goode (“Plaintiffs”), bring this action against Donald

J. Trump, in his official capacity as President of the United States, and allege as follows:

I. NATURE OF THE ACTION

1.

This case arises out of an unprecedented threat to two critical, and closely

related, anti-corruption provisions in the Constitution aimed at ensuring that the President of the

United States faithfully serves the people—free from the compromising effects of financial

inducements from foreign nations, foreign leaders, individual states in the Union, Congress, or

other parts of the federal government. Never before have the people of the United States elected

a President with business interests as vast, complicated, and secret as those of President Donald J.

Trump. Now that he has been sworn into office as the 45th President of the United States,

Defendant’s business interests are creating countless conflicts of interest, as well as unprecedented

influence by foreign governments, and have resulted and will further result in numerous

violations of Article I, Section 9, Clause 8 of the United States Constitution, the “Foreign

Emoluments Clause,” and Article II, Section 1, Clause 7 of the United States Constitution, the

“Domestic Emoluments Clause.”

2.

The Foreign Emoluments Clause provides that “no Person holding any Office

of Profit or Trust under [the United States], 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.” Congress has not consented to Defendant’s receipt of the presents or emoluments

at issue here.

3.

Defendant’s violations of the Foreign Emoluments Clause pose a grave threat to

the United States and its citizens. As the Framers were aware, private financial interests can

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subtly sway even the most virtuous leaders, and entanglements between American officials and

foreign powers could pose a creeping, insidious threat to the Republic. The Foreign Emoluments

Clause was forged of the Framers’ hard-won wisdom. It is no relic of a bygone era, but rather an

expression of insight into the nature of the human condition and the essential preconditions of

self-governance. And applied to Defendant’s diverse dealings, the text and purpose of the

Foreign Emoluments Clause speak as one: this cannot be allowed.

4.

Ultimately, the theory of the Foreign Emoluments Clause—grounded in English

history and the Framers’ experience—is that a federal officeholder who receives something of

value from a foreign power can be imperceptibly induced to compromise what the Constitution

insists be his or her exclusive loyalty: the best interest of the United States of America. And

rather than guard against such corruption by punishing it after-the-fact, the Framers concluded

that the proper solution was to write a strict prophylactic rule into the Constitution itself, thereby

ensuring that shifting political imperatives and incentives never undo this vital safeguard of

freedom.1

5.

The Domestic Emoluments Clause, which is narrower than the Foreign

Emoluments Clause, provides: “The President shall, at stated Times, receive for his Services, a

Compensation, which shall neither be increased nor diminished during the Period for which he

shall have been elected, and he shall not receive within that Period any other Emolument from

1 Norman L. Eisen, Richard Painter & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump (Dec. 16, 2016), http://brook.gs/2hGIMbW; see also Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 18 (1994) (“Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government.”).
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the United States, or any of them.”2

6.

Like the Foreign Emoluments Clause, the Domestic Emoluments Clause arose

to protect the government from corruption. The Founders intended that the Domestic

Emoluments Clause guarantee that Congress, other parts of the federal government, and the

states “can neither weaken [the President’s] fortitude by operating on his necessities, nor corrupt

his integrity by appealing to his avarice.”3 The Founders further intended the Clause to protect

against self-dealing: insuring the President could not receive any benefit from his Office other

than as the fixed compensation prescribed in advance by Congress.

7.

Defendant has violated the Constitution since the opening moments of his

presidency and is poised to do so continually for the duration of his administration. Specifically,

Defendant has committed and will commit violations of both the Foreign Emoluments Clause

and the Domestic Emoluments Clause, involving at least: (a) leases held by foreign-government-

owned entities in New York’s Trump Tower; (b) room reservations, restaurant purchases, the use

of facilities, and the purchase of other services and goods by foreign governments and diplomats,

state governments, and federal agencies, at Defendant’s Washington, D.C. hotel and restaurant;

(c) hotel stays, property leases, restaurant purchases, and other business transactions tied to

foreign governments, state governments, and federal agencies at other domestic and international

establishments owned, operated, or licensed by Defendant; (d) property interests or other

business dealings tied to foreign governments in numerous other countries; (e) payments from

foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the

2 This provision is also referred to as the “Presidential Emoluments Clause.” Although it was originally designated as Article II, Section 1, Clause 7, it is now sometimes referred to as Article II, Section 1, Clause 6, because the original third clause of Article II, Section 1 was superseded by the Twelfth Amendment.
3 The Federalist No. 73 (Alexander Hamilton).

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television program “The Apprentice” and its spinoffs; and (f) continuation of the General

Services Administration lease for Defendant’s Washington, D.C. hotel despite Defendant’s

breach, and potential provision of federal tax credits in connection with the same property.

8.

Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) is a

nonprofit, nonpartisan organization founded in 2002 that works on behalf of the public to foster

an ethical and accountable government and reduce the influence of money in politics. CREW

has continuously sought to advance its mission through educating the public, advocacy, and

enforcement.

9.

CREW brings this action to stop and prevent the violations of the Emoluments

Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal

to avoid these and other violations of the Emoluments Clauses, CREW has been significantly

injured and will continue to be injured unless this Court orders relief. CREW has been forced to

divert essential and limited resources—including time and money—from other important

matters that it ordinarily would have been addressing to the Emoluments issues involving

Defendant. Defendant’s conduct is in direct conflict with CREW’s mission. CREW’s work on

its core mission has been rendered more difficult, time consuming, and expensive due to the

ongoing Emoluments violations. Moreover, without declaratory and injunctive relief from this

Court, CREW will continue to suffer this diversion and depletion of resources for the remainder

of Defendant’s administration. CREW will essentially be forced into the role of combatting and

educating the public regarding Defendant’s Emoluments violations, rather than continuing its

mission of serving as a watchdog with respect to all ethical issues involving all parts of our

government.

10. CREW is further injured because Defendant’s activities impair the ability of

CREW to carry out its mission through its prior core activities: exposing the corrupting 4

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influence of money through research, public education, and, where necessary, litigation. Defendant’s novel use of an opaque and sprawling business organization to collect funds creates a dangerous new avenue for corruption that resists detection. While CREW previously performed important work by relying on official filings, public disclosures, and other readily available documents, Defendant’s activities deny CREW the information such sources provide, and that CREW uses to raise public awareness, further impeding and inhibiting CREW’s daily activities and operations. To carry out its mission and continue its work, CREW must engage in more time consuming, more expensive, and less effective research to continue bringing corruption to light, diverting resources from its other projects.
11. Plaintiff Restaurant Opportunities Centers (ROC) United, Inc. (“ROC United”) is a nonprofit, nonpartisan organization founded in 2008. ROC United has nearly 25,000 restaurant-employee members; through its project Restaurants Advancing Industry Standards in Employment (“RAISE”), it has over 200 restaurant members; and through its project Diners United, it has about 3,000 diner members. ROC United engages workers, employers, and consumers to improve wages and working conditions in the restaurant industry, including by providing job training, placement, leadership development, civic engagement, legal support, and policy advocacy. In addition, ROC United owns and operates a restaurant in New York City, and is opening another one soon in Washington, D.C.
12. ROC United brings this action on behalf of its members to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal to avoid these and other violations of the Emoluments Clauses, ROC United members have been significantly injured and will continue to be injured unless this Court grants relief.
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13. ROC United’s members include restaurants and the employees of restaurants that compete with restaurants owned by Defendant and with restaurants located in hotels and other properties owned by Defendant or in which Defendant has a financial interest, including in Washington, D.C. and New York City. In violation of the Foreign and Domestic Emoluments Clauses, Defendant has received gifts or emoluments from foreign states or instrumentalities and emoluments from the United States and state and local governments in the form of payments to Defendant’s hotels, restaurants, and other properties and to restaurants located in Defendants’ hotels and other properties. As competitors and employees of competitors of restaurants located in Defendant’s hotels and other properties, including restaurants owned by Defendant, ROC United’s members have been injured by these payments due to lost business, wages, and tips.
14. ROC United also brings this action on its own behalf to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit that impact ROC United’s own restaurant. ROC United’s “COLORS” restaurant competes with restaurants owned by Defendant and with restaurants located in hotels and other properties owned by Defendant or in which Defendant has a financial interest. In violation of the Foreign and Domestic Emoluments Clauses, Defendant has received gifts or emoluments from foreign states or instrumentalities and emoluments from the United States and state and local governments in the form of payments to Defendant’s hotels, restaurants, and other properties and to restaurants located in Defendants’ hotels and other properties. As a competitor of restaurants located in Defendant’s hotels and other properties, including restaurants owned by Defendant, ROC United has been injured by these payments due to lost business, and will continue to be injured by such payments unless this Court grants relief.
15. Plaintiff Jill Phaneuf is an individual resident of Washington, D.C. She has worked for hotel owners in Washington, D.C. for several years and has held various roles
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relating to the performance of those hotels. In her current position, she works with a hospitality company to book events for two hotels that are flagged as Kimptons: the Carlyle Hotel, situated just north of Dupont Circle, and the Glover Park Hotel, situated near Massachusetts Avenue, NW, which is colloquially referred to as “Embassy Row.” She specifically seeks to book embassy functions, political functions involving foreign governments, and functions for organizations that are connected to foreign governments, in addition to other events in the Washington, D.C. market. Her compensation is directly tied to a percentage of the gross receipts of the events that she books for the hotels.
16. Ms. Phaneuf brings this action to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal to avoid violations of the Emoluments Clauses, Ms. Phaneuf will be injured without relief from this Court.
17. The hotels for which Ms. Phaneuf seeks to book embassy functions and other events compete with hotels owned by Defendant or in which Defendant has a financial interest. Defendant has received payments from foreign states or instrumentalities and from the United States and state and local governments, through Defendant’s hotels, restaurants, and other properties. As an individual working to book events at competitor hotels, Ms. Phaneuf will be injured due to loss of commission-based income.
18. Plaintiff Eric Goode resides in New York, New York. Mr. Goode is the owner of several celebrated hotels, restaurants, bars, and event spaces in New York. These include the Maritime Hotel located in Chelsea; the Bowery Hotel and Ludlow Hotel, both in the Lower East Side; and the Jane Hotel in the Meatpacking District. Among the restaurants that Mr. Goode owns—several of which are located in hotels—are the Park, Waverly Inn, and Gemma, the last of which is located in the Bowery Hotel. Mr. Goode’s hotels and restaurants have attracted
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multiple foreign government clients and events, and have also hosted U.S. government officials and state officials traveling on official business and thus paying with government funds.
19. Mr. Goode brings this action to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. Mr. Goode’s hotels and restaurants compete with hotels and restaurants owned by Defendant, and with restaurants located in hotels and other properties owned by Defendant, or in which Defendant has a financial interest. As a direct result of Defendant’s refusal to avoid violations of the Emoluments Clauses, Mr. Goode will be injured without relief from this Court.
20. Accordingly, Plaintiffs request that this Court: (a) enter a declaratory judgment declaring that Defendant has violated and will continue to violate the Foreign Emoluments Clause and the Domestic Emoluments Clause; (b) enjoin Defendant from violating both Emoluments Clauses; and (c) enter an injunction requiring Defendant to release financial records sufficient to confirm that Defendant is not engaging in any further transactions that would violate either Emoluments Clause.
II. PARTIES, JURISDICTION, AND VENUE 21. CREW is a nonprofit, nonpartisan corporation organized under the laws of Delaware and exempt from taxation under 26 U.S.C. § 501(c)(3). CREW is committed to protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. CREW advances that mission through education, advocacy, and enforcement. Among other activities, CREW educates the public on ethics and the impact of money in politics by producing reports, publishing blog posts, and issuing press releases. CREW seeks to empower citizens to have an influential voice in
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government decisions and in the governmental decision-making process through the dissemination of information about public officials and their conduct. CREW also works to advance reforms in the areas of ethics, campaign finance, lobbying, and transparency, and seeks to ensure the proper interpretation and enforcement of government ethics laws and other laws related to corruption and money in politics.
22. To advance its mission, CREW uses a combination of research, litigation, advocacy, and public education to disseminate information about public officials, their actions, and the outside influences that have affected those actions. A core part of this work is examining and exposing special interests that have influenced public officials and elections, and then using that information to educate the public and voters regarding the integrity of public officials, candidates for public office, the electoral process, and our system of government.
23. Toward this end, CREW monitors the activities of public officials and candidates, as well as businesses and others that financially support them, including support received through campaign contributions, gifts, and businesses or other entities associated with public officials. CREW regularly reviews public records that disclose the financial benefits provided to public officials and their business interests, including personal financial-disclosure forms, campaign-finance reports, travel records, and lobbying reports. CREW further conducts independent research to uncover financial support for public officials and candidates, reviewing business records, tax returns, property records, and news reports. CREW’s research also regularly includes submitting federal and state public-records requests and reviewing the records obtained.
24. A part of CREW’s work in carrying out its central mission focuses on so-called “pay-to-play” schemes. Toward that end, CREW looks for correlations between financial benefits received by public officials and their subsequent conduct.
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25. Using the information obtained from public records and independent research, CREW—through its website, press releases, reports, and other methods of distribution— publicizes the roles of individuals, groups, and businesses attempting to use financial support to influence politics and public policy, and the public officials and candidates who accept that support. In particular, CREW publicizes violations of ethics, campaign finance, and other anticorruption laws and rules by those public officials and candidates. CREW also regularly files complaints with government agencies when it discovers violations of these laws and rules. In addition, CREW regularly files lawsuits under the Freedom of Information Act, Federal Election Campaign Act, Administrative Procedures Act, and other statutes to compel government agencies to properly interpret and enforce anti-corruption, accountability, and transparency laws and rules, and participates as an amicus curiae in related civil and criminal litigation.
26. By publicizing violations and filing complaints and lawsuits, CREW advances its mission of keeping the public informed about public officials and candidates and deterring future violations of these laws and rules.
27. CREW provides services to the public by disseminating the results of CREW’s extensive investigations, advocating for public access to information about the government and public officials, and enforcing the right to public access to information, through litigation when necessary. CREW further provides advice to public officials and reporters on how to expose government corruption and what legislative reforms are required to combat it.
28. ROC United is a nonprofit, nonpartisan corporation organized under the laws of New York. ROC United includes its project RAISE, which is its organization of restaurant members, and its project Diners United, which is its organization of diner members. ROC United also owns and operates the restaurant COLORS in New York City and Detroit, and will be opening a location in Washington, D.C. soon.
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29. Jill Phaneuf is an individual citizen of Washington, D.C. 30. Eric Goode is an individual citizen of New York, New York. 31. Defendant is the President of the United States of America. He is being sued here in his official capacity as President. 32. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 2201. 33. Venue is proper in the Southern District of New York under 28 U.S.C. § 1391(e)(1). Defendant is “an officer . . . of the United States . . . acting in his official capacity or under color of legal authority,” and the Southern District of New York is a “judicial district” in which “a substantial part of the events or omissions giving rise to the claim occurred,” and where “a substantial part of property that is the subject of the action is situated.” For example, New York’s Trump Tower and Defendant’s “Trump Organization”—both key components of Plaintiffs’ claims—are based in the Southern District of New York.
III. LEGAL BACKGROUND 34. The origins of the “Foreign Emoluments Clause” date back as far as 1651, when the Dutch broke with classic European diplomatic customs and prohibited their foreign ministers from accepting “any presents, directly or indirectly, in any manner or way whatever.” Impressed, the early Americans included similar text—the predecessor for the Foreign Emoluments Clause—in Article 6, Section 1 of the Articles of Confederation: “[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State.” 35. The foreign anti-emolument provision initially was not included at the Constitutional Convention, but it was added without dissent at the request of Charles Pinckney, who “urged the necessity of preserving foreign Ministers & other officers of the U. S.
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independent of external influence.”4 Edmund Jennings Randolph echoed the anti-corruption purpose of the Foreign Emoluments Clause included in the Constitution: “It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”5 The Framers recognized the dangers of foreign influence and corruption, even in situations subtler than quid pro quo bribery, and thus they created a broad constitutional prophylactic applicable to anything of value given by any foreign government to any officer of the United States.
36. The Presidency of the United States is an “Office of Profit or Trust under the United States.”
37. Consistent with the Framers’ intent, the definition of a “present” or “Emolument” under the Foreign Emoluments Clause is properly interpreted in a broad manner, to cover anything of value, monetary or nonmonetary. The text of the clause itself prohibits the receipt of both a “present,” which, presumably, is provided without a return of anything of equal value, and an “Emolument,” which could cover anything else of value, including without limitation payments, transactions granting special treatment, and transactions above marginal cost. The Foreign Emoluments Clause also explicitly prohibits the receipt of “any present [or] Emolument . . . of any kind whatever,” emphasizing the breadth of the things of value covered under the provision.
38. The Foreign Emoluments Clause covers not only a transfer from a king, prince, or foreign State individually, but also any transfer from their instrumentalities and controlled entities. Though not a body with authority to provide controlling interpretations of this
4 2 Farrand, The Records of the Federal Convention of 1787, at 389. 5 3 Farrand, The Records of the Federal Convention of 1787, at 327.
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constitutional text, the U.S. Department of Justice’s Office of Legal Counsel has consistently examined three non-dispositive factors with respect to determining which entities fall within the definition of a “foreign State” under the Foreign Emoluments Clause, always with an eye toward the underlying purpose of preventing corruption and foreign influence: (a) “whether a government is the substantial source of funding for the entity”; (b) “whether a government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument”; and (c) “whether a government has an active role in the management of the entity.”6 It is widely accepted—and has been reaffirmed by the Office of Legal Counsel as recently as 2009—that a “foreign State” under the Foreign Emoluments Clause includes agents and instrumentalities of foreign nations, including local government units within a foreign country.7
39. Just as the Framers sought to stem foreign influence with the Foreign Emoluments Clause, they too sought to stem the system of patronage, influence, and rentextraction that predominated the colonial governors’ offices by means of a Domestic Emoluments Clause specifically targeting the President. The clause provides that the President’s “Compensation” shall not be increased or decreased, and that he may not receive any “other emolument from the United States, or any of them,” during his term of office. Though the clause permits presents from states and the federal government—unlike the Foreign Emoluments Clause—it nonetheless works to ensure that neither can “weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice.” The ban on other emoluments, Alexander Hamilton explained, would ensure that the President would have “no pecuniary
6 Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 8 (2009).
7 Id. at 7; Major James D. Dunn, B-251084, 1993 WL 426335, at *3 (Comp. Gen. Oct. 12, 1993).
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inducement to renounce or desert the independence intended for him by the Constitution.” Further, as recognized by judicial authorities, the ban “addressed the Framers’ concern that the President should not have the ability to convert his or her office for profit.”
40. The Domestic Emoluments Clause proscribes the receipt of additional emoluments only by the President and, unlike the Foreign Emoluments Clause, does not apply to any other federal official. It therefore reflects the Framers’ special concern about ensuring that the Nation’s powerful Chief Executive remains free from the distorting and corrupting influences that might impair his ability to faithfully execute his office.
41. Just as the Foreign Emoluments Clause bars payments not only from foreign states, but also their subdivisions and instrumentalities, the Domestic Emoluments Clause bars payments not only from the federal government and state governments, but also their respective instrumentalities and subdivisions. The Supreme Court has long viewed local governments as “mere[]. . . departments” of the state. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 362 (2009).
IV. RELEVANT FACTS A. Defendant’s Foreign Emoluments Clause Violations 42. Defendant owns and controls hundreds of businesses throughout the world, including hotels and other properties. His sprawling business empire is made up of hundreds of different corporations, limited-liability companies, limited partnerships, and other entities that he owns or controls, in whole or in part, operating in the United States and 20 or more foreign countries.8 Defendant’s businesses are loosely organized under an umbrella known as the “Trump Organization.” However, Defendant’s interests include not only Trump Organization
8 Marilyn Geewax & Maria Hollenhorst, Trump’s Businesses And Potential Conflicts: Sorting It Out, NPR (Dec. 5, 2016, 7:00 AM), http://n.pr/2g2xZDP.
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LLC d/b/a The Trump Organization and The Trump Organization, Inc., both of which are owned solely by Defendant, but also scores of other entities not directly owned by either “Trump Organization” entity but that Defendant personally owns, owns through other entities, and/or controls.9 Defendant also has several licensing agreements that provide streams of income that continue over time. Through these entities and agreements, Defendant personally benefits from business dealings, and Defendant is and will be enriched by any business in which they engage with foreign governments, instrumentalities, and officials.
43. On January 11, 2017 Defendant announced a plan to turn “leadership and management” of the Trump Organization over to his sons Eric Trump and Donald Trump Jr., as well as a longtime company executive.10 But the plan did not include Defendant relinquishing ownership of his businesses or even establishing a blind trust.
44. Defendant continues to own, and be well aware of the activities of, the Trump Organization, other corporations, limited-liability companies, limited partnerships, and other entities in which he retains an ownership interest. Although Defendant established a trust to hold his business assets, Defendant is permitted to obtain distributions from his trust at any time.11 Additionally, Defendant’s son Eric Trump (who is also an advisor to Defendant’s trust) initially indicated that he would not communicate with Defendant concerning his business interests.
9 U.S. Office of Gov’t Ethics, Donald J. Trump 2016 Executive Branch Personnel Public Financial Disclosure Report (May 16, 2016), http://bit.ly/2gBUwIV.
10 Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017), http://nyti.ms/2jG86w8.
11 David Kravitz & Al Shaw, Trump Lawyer Confirms President Can Pull Money From His Businesses Whenever He Wants, ProPublica (April 4, 2017, 5:53 PM), http://bit.ly/2o1OM1C.
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Nevertheless, Eric Trump has acknowledged that he will provide business updates to Defendant on at least a quarterly basis.12
45. Defendant has neither sought nor received “Consent of the Congress” with respect to his receipt of gifts and emoluments from government officials and entities.
New York’s Trump Tower 46. New York’s “Trump Tower” is a mixed-use skyscraper located at 725 Fifth Avenue, New York, New York 10022. 47. Through the use of various entities, Defendant owns and controls Trump Tower. 48. Defendant, through entities he owns, receives payments made to Trump Tower by tenants. 49. Among the largest tenants of Trump Tower is the Industrial and Commercial Bank of China (“ICBC”), which is a Chinese majority-state-owned enterprise.13 As such, ICBC is a foreign State or instrumentality of a foreign State. 50. After 12:01 pm on January 20, 2017, Trump Tower or its controlling entities have received one or more payments from ICBC pursuant to its lease. Trump Tower or its controlling entities will continue to receive regular payments from ICBC pursuant to its lease agreement. 51. In discussing his views of U.S.-China relations, Defendant has repeatedly referenced the ICBC’s Trump Tower lease. For instance, Defendant stated during his
12 Jennifer Calfas, Eric Trump Says He’ll Give the President Quarterly Updates on Business Empire, Fortune (March 24, 2017), http://for.tn/2n2MRXa.
13 Caleb Melby et al., When Chinese Bank’s Trump Lease Ends, Potential Conflict Begins, Bloomberg (Nov. 28, 2016, 7:00 AM), https://bloom.bg/2oQ07T4.
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presidential campaign in June 2015, “I love China! The biggest bank in the world is from China. You know where their United States headquarters is located? In this building, in Trump Tower.”14
52. Additionally, in March 2016, when asked about China’s territorial claims in the South China Sea, Defendant told the Washington Post, “I do deals with them all the time. The largest bank in the world, 400 million customers, is a tenant of mine in New York, in Manhattan.”15
53. The term of ICBC’s Trump Tower lease runs until October 2019, while Defendant is President, and any negotiations for an extension will occur while Defendant is in office.16
54. The Abu Dhabi Tourism & Culture Authority, an entity owned by the foreign nation of the United Arab Emirates, leases office space in Trump Tower.17 The Abu Dhabi Tourism & Culture Authority is a foreign State or instrumentality of a foreign State.
55. After 12:01 pm on January 20, 2017, Trump Tower or its controlling entities have received one or more payments from the Abu Dhabi Tourism & Culture Authority pursuant to its lease. Trump Tower or its controlling entities will continue to receive regular payments from the Abu Dhabi Tourism & Culture Authority pursuant to its lease agreement.
56. Trump Grill is located inside of Trump Tower. Defendant, through various
14 Id. 15 Id. 16 Id. 17 Abu Dhabi Tourism & Culture Authority, Supplement Statement Pursuant to Foreign Agents Registration Act of 1938, as amended (Oct. 4, 2016), http://bit.ly/2prSZNb; María Villaseñor, Trump’s Comments Cost Him Money in Middle East, NBC News (Dec. 9, 2015, 10:51 AM), http://nbcnews.to/1PZxTNA.
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business entities, owns Trump Grill. Upon information and belief, tenants of Trump Tower, including officials of China and Abu Dhabi, have dined at Trump Grill due to their tenancy in the Tower and the states themselves may host events there. Accordingly, foreign states or the instrumentalities have paid or are likely to pay for services at Trump Grill. Defendant has and will continue to receive payments from various foreign states through Trump Grill.
Washington, D.C.’s Trump International Hotel 57. The Trump International Hotel Washington, D.C. recently opened and is located at 1100 Pennsylvania Avenue N.W., Washington, D.C. 20004, just blocks from the White House. Defendant owns and controls this hotel through various entities. 58. Defendant, through entities he owns, receives payments made to the Trump International Hotel by guests who stay in hotel rooms or pay for a venue or other goods or services in this hotel. 59. The restaurant BLT Prime is located in Trump International Hotel. Defendant, through various business entities, owns the restaurant and licenses the name from BLT Prime and pays BLT Prime to operate it.18 60. Since the election, Trump International Hotel has specifically marketed itself to the diplomatic community.19 Subsequent to Defendant’s election, the Trump International Hotel held an event where it pitched the hotel to about 100 foreign diplomats. 61. The hotel also hired a “director of diplomatic sales” to facilitate business with foreign states and their diplomats and agents, luring the director away from a competitor hotel in
18 Jessica Sidman, How Donald Trump Lost His DC Restaurants, Washingtonian (Oct. 23, 2016), http://bit.ly/2htYzq9.
19 Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump hotel is place to be, Wash. Post (Nov. 18, 2016), http://wapo.st/2oPYggX.
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Washington.20 62. Diplomats and their agents have expressed an intention to stay at or hold events
at the Trump International Hotel. One “Middle Eastern diplomat” told the Washington Post about the hotel: “Believe me, all the delegations will go there.”21 An “Asian diplomat” explained: “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’”22
63. Since his election, Defendant has appeared at the hotel on multiple occasions. Several figures in Defendant’s administration have also lived or continue to live in the Trump International Hotel, including Treasury Secretary Steve Mnuchin and Small Business Administration Administrator Linda McMahon.
64. The Kingdom of Bahrain held its National Day celebration at the Trump International Hotel on December 7, 2016.23
65. The Kingdom of Bahrain is a foreign State. 66. Upon information and belief, Bahrain paid the Hotel no less than its stated customary rates for the venue, food, and other services provided in connection with its National Day celebration. 67. After November 8, 2016, Trump International Hotel or its controlling entities have received one or more payments from Bahrain.
20 Id. 21 Id. 22 Id. 23 Nolan D. McCaskill & Madeline Conway, Bahrain to host event at Trump’s D.C. hotel, raising ethical concerns, POLITICO (Nov. 29, 2016, 3:37 PM), http://politi.co/2gtWGLd.
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68. The Embassy of Azerbaijan co-hosted a Hanukkah party at the Trump International Hotel on December 14, 2016.24
69. Upon information and belief, Azerbaijan paid the Hotel no less than its stated customary rates for the venue, food, and other services provided in connection with the Hanukkah party.
70. The Embassy of Azerbaijan is a foreign state or instrumentality of a foreign State.
71. After November 8, 2016, Trump International Hotel or its controlling entities received one or more payments from Azerbaijan.
72. The Embassy of Kuwait held its National Day celebration at Trump International Hotel on February 22, 2017.25
73. Upon information and belief, Kuwait paid no less than the Hotel’s stated customary rates for the venue, food, and other services provided in connection with its National Day celebration. The cost has been estimated at $40,000 to $60,000.26
74. Prior to the election, a “save the date” reservation had been made with the Four Seasons hotel, where the event had been held previously.27 According to one media report, the Embassy of Kuwait moved the event from a competitor hotel under pressure from the Trump
24 Azerbaijan’s Embassy To Co-Host Hanukkah Party At Trump’s DC Hotel, The Jerusalem Post (Dec. 4, 2016), http://bit.ly/2g4o9S0.
25 Jonathan O’Connell, Kuwaiti Embassy is latest to book Trump D.C. hotel, but ambassador says he felt ‘no pressure’, Wash. Post (Dec. 20, 2016), http://wapo.st/2pKC4BS; Jackie Northam, Kuwait Celebration At Trump Hotel Raises Conflict of Interest Questions, NPR (Feb. 25, 2017, 6:33 AM), http://n.pr/2lavPoB.
26 Julia Harte, Kuwait could pay up to $60,000 for party at Trump Hotel in Washington, Reuters (Feb. 27, 2017, 4:29 PM), http://reut.rs/2oFztKa.
27 Jackie Northam, Kuwait Celebration At Trump Hotel Raises Conflict of Interest Questions, NPR (Feb. 25, 2017, 6:33 AM), http://n.pr/2lavPoB.
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Organization (though Kuwait’s ambassador to the United States denied being pressured).28 75. After 12:01 pm on January 20, 2017, Trump International Hotel or its
controlling entities have received one or more payments from Kuwait. 76. Kuwait is a foreign State. 77. Between January 23 and 26, 2017, the Kingdom of Saudi Arabia, through its
agent, rented at least one and likely several rooms at the Trump International Hotel.29 78. Upon information and belief, Saudi Arabia paid at least $300 per night for the
rooms, and paid the Hotel’s usual and customary rates for meals and other services provided in connection with the stay.
79. Saudi Arabia paid for individuals to have dinner at the hotel on January 23 and both breakfast and dinner on January 24, 2017. Upon information and belief, at least one of the meals was provided by BLT Prime.30
80. After 12:01 pm on January 20, 2017, Trump International Hotel or its controlling entities have received one or more payments from Saudi Arabia, through its agent.
81. Saudi Arabia is a foreign State. 82. On or about April 6, 2017, Kaha Imnadze, the Ambassador & Permanent Representative of Georgia to the United Nations, stayed at Trump International Hotel.31
28 Judd Legum & Kira Lerner, Under political pressure, Kuwait cancels major events at Four Seasons, switches to Trump’s D.C. hotel, ThinkProgress (Dec. 19, 2016), http://bit.ly/2hBOHhP.
29 Isaac Arnsdorf, Saudis foot tab at Trump hotel, POLITICO (Feb. 9, 2017, 8:50 PM), http://politi.co/2kZa6mS.
30 Operations Order from Jason E. Johns, President of NMLB Veterans Advocacy Group, to Fly-In Veterans regarding the Justice Against Sponsors of Terrorism Act (Jan. 23-26, 2017), http://bit.ly/2oiBdIp.
31 Kaha Imnadze (@kahaimnadze), Twitter (April 6, 2017, 8:49 AM), http://bit.ly/2oiF8Fd.
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83. Upon information and belief, the government of Georgia paid no less than the Hotel’s stated customary rates for his room and other services provided in connection with his stay.
84. Ambassador Imnadze then tweeted his complements about the Hotel. 85. After 12:01 pm on January 20, 2017, Trump International Hotel or its controlling entities have received one or more payments from Georgia. 86. Georgia is a foreign State. 87. After 12:01 pm on January 20, 2017, Trump International Hotel or its controlling entities have received and will continue to receive payments from other foreign states. 88. On January 20, 2017, Trump Old Post Office LLC, the entity leasing the building in which Trump International Hotel is located and in which Defendant has a beneficial interest, amended its governing agreement to provide that, during Defendant’s presidency, the company will not make any distributions of profits to any entity in which Defendant has a beneficial interest and will credit these undistributed profits to an unrecovered capital contribution account held for the benefit of the designated entities that Defendant controls. This amendment is immaterial to whether Defendant has violated the Foreign Emoluments Clause. Defendant remains owner of approximately 77.5% of the Trump Old Post Office LLC (the remaining shares are owned by three of his children), and Defendant thereby benefits from any amounts deposited into the unrecovered capital contribution account, and may receive distribution of those amounts once he is no longer in office. 89. Additionally, the amendment provides that Defendant’s contributions will be used by Trump Old Post Office LLC for business purposes, thereby increasing the value of one of Defendant’s assets.
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Trump World Tower 90. Trump World Tower is a skyscraper located at 845 United Nations Plaza, New York, New York containing condo units. 91. Through the use of various entities, Defendant owns and controls Trump World Tower. 92. Defendant, through entities he owns, receives payments made by residents of the Trump World Tower for common charges. 93. The World Bar is located in Trump World Tower. 94. In 2001, the Kingdom of Saudi Arabia paid $4.5 million to purchase a floor of Trump World Tower.32 95. At the time of the sale, yearly common charges for building amenities for the floor totaled $85,585. As of 2003, the most recent year for which information is publicly available, Saudi Arabia paid monthly common charges of approximately $7,398, amounting to $88,781 per year. The floor currently belongs to the Kingdom of Saudi Arabia for use by the Saudi Mission to the United Nations, which upon information and belief still pays common charges to Defendant.33 96. In 2015, Trump said about Saudi Arabia, “I get along great with all of them. They buy apartments from me.” Trump further noted, “They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much.”34
32 Stephen R. Brown, Donald Trump made millions from Saudi Arabia, but trashes Hillary Clinton for Saudi donations to Clinton Foundation, N.Y. Daily News (Sept. 4, 2016, 4:00 AM), http://nydn.us/2bNEAq2.
33 Id. 34 Id.
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97. The Kingdom of Saudi Arabia is a foreign State, and the Saudi Mission to the United Nations is an instrumentality of a foreign State.
98. In 2002, the Permanent Mission of India to the United Nations paid $5.1 million to purchase two units in Trump World Tower from Defendant.35
99. As of 2003, the most recent year for which information is publicly available, the Permanent Mission of India to the United Nations paid monthly common charges of approximately $3,639, amounting to $43,670 per year. The units continue to belong to the Permanent Mission of India to the United Nations, which upon information and belief still pays common charges to Defendant.
100. The Permanent Mission of India to the United Nations is an instrumentality of a foreign State.
101. In 2009, the Permanent Mission of Afghanistan to the United Nations paid $4.235 million to purchase a unit in Trump World Tower.36
102. As of 2003, the most recent year for which information is publicly available, the common monthly charges for the unit purchased by the Permanent Mission of Afghanistan to the United Nations were approximately $2,090 per month, amounting to approximately $25,085 per year. The unit continues to belong to the Permanent Mission of Afghanistan to the United Nations, which upon information and belief still pays common charges to Defendant.
103. The Permanent Mission of Afghanistan to the United Nations is an instrumentality of a foreign State.
35 N.Y.C. Dep’t of Finance, Office of the City Registrar, Condo. Unit Deed: 845 U.N. Ltd. P’ship To The Permanent Mission of India to the U.N. (Dec. 23, 2002), http://on.nyc.gov/2pb8Obx.
36 Max Abelson, Afghanistan Buys $4.2 M. Trump Condo (with ‘Peacefulness and Views’), Observer (Sept. 11, 2009, 4:48 PM), http://bit.ly/2oQ74n3.
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104. In 2004, the Permanent Mission of Qatar to the United Nations paid $1,995,000 to purchase a unit in Trump World Tower, and in 2012, it paid $8.375 million to purchase two additional units in Trump World Tower.
105. As of 2003, the most recent year for which information is publicly available, the common monthly charges for the units purchased by the Permanent Mission of Qatar to the United Nations, 14A, 55B, and 49B, were a total of approximately $5,660 per month, amounting to approximately $67,920 per year. The units continue to belong to the Permanent Mission of Qatar to the United Nations, which upon information and belief still pays common charges to Defendant.
106. The Permanent Mission of Qatar to the United Nations is an instrumentality of a foreign State.
107. Defendant, through entities he owns, receives payments made to Trump World Tower by tenants, and owners of units in the building, through their payment of common charges. On information and belief, these payments more than cover the costs intended to be covered by the common charges.
108. Trump World Tower or its controlling entities will continue to receive regular common charge payments from Saudi Arabia, India, Afghanistan, and Qatar, and those payments will flow to Defendant.
109. Tenants of the Trump World Tower—including officials from Saudi Arabia, India, Afghanistan, and Qatar—have dined or will dine at the World Bar. Further, foreign states or instrumentalities of these or other foreign states have hosted and will host events at the World Bar, as it is located near the United Nations. By reason of his financial stake in Trump World Tower, Defendant will either receive payments from foreign states made to the World Bar; or the revenue that the World Bar receives, including from foreign states, affects the amount of rent that
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Defendant is able to charge the World Bar. 110. Neither Saudi Arabia, India, Afghanistan, nor Qatar is one of the countries
included in Defendant’s Executive Order or Defendant’s revised Executive Order barring visitors from six predominantly Muslim countries. None of the six countries included in the order has the financial relationships with Defendant that Saudi Arabia, India, Afghanistan, or Qatar has.
Gratuitous Chinese Trademarks 111. Defendant began to seek trademark protection in China for the use of his name in connection with building construction services in 2006. His application was rejected by the Trademark Office. He lost his appeals to the Trademark Review and Adjudication Board, the Beijing Intermediate People’s Court, and the Beijing High People’s Court.37 Trump’s most recent defeat occurred in May 2015—the month before he declared his candidacy for president. 112. Following the election, on December 2, 2016, Defendant spoke directly with Taiwan President Tsai Ing-wen.38 That conversation broke long-standing protocol, and suggested Defendant might end the “One China” policy that the United States had observed for decades. Before taking office, Defendant suggested that he might end the One China policy unless some benefit were received in exchange.39 113. On February 9, 2017, Defendant spoke with Chinese President Xi Jinping, and
37 Erika Kinetz, With Trump’s win in China, will Trump toilets get flushed?, Associated Press (Feb. 14, 2017), http://apne.ws/2mfcK9N.
38 Jordan Fabian & Neetzan Zimmerman, Trump makes history with phone call to Taiwan leader, The Hill (Dec. 2, 2016, 4:52 PM), http://bit.ly/2prWnYu.
39 Jordan Fabian & Evelyn Rupert, Trump promises Chinese president he’ll honor ‘one China’ policy, The Hill (Feb. 9, 2017, 11:11 PM), http://bit.ly/2pbgZUW; Laurel Raymond & Judd Legum, Trump’s trademark tests Chinese law, Think Progress (Feb. 18, 2017), http://bit.ly/2oPTD6q.
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pledged to honor the One China policy.40 114. Five days later, on February 14, 2017, China reversed its prior course and gave
Defendant trademark protection. 115. Chinese law prohibits awarding trademarks that are “the same as or similar to
the name of leaders of national, regional, or international political organizations.”41 116. Despite denying Defendant trademark protection for over ten years, including
in a ruling from an appellate court, and despite China’s law barring the use of foreign leaders’ names as trademarks, China gave Defendant the trademark he had requested and valued. However, China only gave the trademark protection to Defendant after he had been elected President, questioned the One China policy, was sworn in, and re-affirmed the One China policy.
117. The trademarks have considerable value by giving the Trump Organization the sole right to profit from the Trump brand in China. China’s granting of these trademarks constitutes a present or emolument provided to the Defendant.
118. When asked why Defendant changed his position on the One China policy, and whether he had gotten something in exchange from China, White House Press Secretary Sean Spicer answered: “The President always gets something,” but did not specify what concession was obtained from China.42
40 Jordan Fabian & Evelyn Rupert, Trump promises Chinese president he’ll honor ‘one China’ policy, The Hill (Feb. 9, 2017, 11:11 PM), http://bit.ly/2pbgZUW.
41 Laurel Raymond & Judd Legum, Trump’s trademark tests Chinese law, Think Progress (Feb. 18, 2017), http://bit.ly/2oPTD6q.
42 Madeline Conway, Spicer on Trump’s ‘One China’ agreement: ‘The president always gets something’, POLITICO (Feb. 27, 2017, 3:11 PM), http://politi.co/2prZpf7.
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International Versions and Distribution of “The Apprentice” and Its Spinoffs 119. Defendant earns royalties and other payments from the distribution in other countries of the television program “The Apprentice” and its spinoffs (including “The Celebrity Apprentice” and “The New Celebrity Apprentice,” for which Defendant is still an executive producer), as well as from international versions of the programs produced in other countries. In some instances, these payments originate from foreign governments or their agents or instrumentalities. For instance, there is an iteration of the program “The Apprentice,” for which Defendant is paid, in the United Kingdom.43 120. The network which broadcasts The Apprentice and spinoff shows in the United Kingdom is an instrumentality of a foreign State. 121. After 12:01 pm on January 20, 2017, Defendant has received and will continue to receive payments from foreign states via their payments for “The Apprentice” or its spinoffs and international versions. Other Foreign Connections, Properties, and Businesses 122. United Arab Emirates: Defendant’s company is engaged in several real estate projects in the United Arab Emirates (UAE), including Dubai’s Trump International Golf Club, which opened on February 18, 2017.44 Upon information and belief, Defendant, through various business entities, has a branding and management contract with the property, and thereby possesses a financial interest in the Trump International Gold Club. 123. All services for the golf club, including electricity, water, and roads, “come at the
43 Madeline Berg, Here’s How Much Donald Trump Will Earn From Producing ‘Celebrity Apprentice’, Forbes (Dec. 13 2016, 12:49 PM), http://bit.ly/2pKQTom.
44 Sudarsan Raghavan, Trump’s sons get red carpet treatment at Dubai golf club opening, Wash. Post (Feb. 18, 2017), http://wapo.st/2oGGaO1.
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discretion of the government,” and the “club’s bar will need government approvals to serve alcohol, not to mention other regulatory issues.”45 In light of the government’s complete discretion to grant or deny these services and license, the government’s granting of these approvals constitutes a present or emolument.
124. Permits, utility and other services, and approvals are of substantial economic value to the Golf Club and other projects and thus to those with a financial interest in the Golf Club and other projects, since these facilities cannot be built or operated without them. Defendant will receive value from the permits, services and approvals through his financial stake in the company receiving them, and thereby will accept a present or emolument from UAE, a foreign State.
125. Indonesia: Defendant’s company is engaged in at least two real estate projects in Indonesia, including redeveloping a resort in Bali.46 Upon information and belief, Defendant, through various business entities, has a licensing and management agreement with these projects, through which he possesses a financial interest in them.
126. As part of this effort, Defendant reportedly has “forged relationships with powerful political figures in Indonesia, where such connections are crucial to pushing through big projects.”47 Because the granting of necessary permits and approvals for these real estate projects
45 Jon Gambrell, Trump’s New Dubai Golf Club Shows Pitfalls of His Presidency, Associated Press (Jan. 3, 2017), http://apne.ws/2iyX6B9.
46 Ian Jarrett, Pan Pacific makes way for Trump in Bali, Travel Weekly (Feb. 17, 2017), http://bit.ly/2nU3ANN; Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016), http://nyti.ms/2pbahyo; Russ Choma, Trump’s Indonesian Business Partner Brags About His Access, Mother Jones (Feb. 10, 2017, 1:09 PM), http://bit.ly/2kujqMC.
47 Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016), http://nyti.ms/2pbahyo.
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was or will be facilitated by Defendant’s personal relationships with government officials in Indonesia, these existing or forthcoming permits and approvals constitute gifts or emoluments.
127. Completing the projects required or will require obtaining benefits from the Indonesian government, such as permits and approvals. Permits and approvals are of substantial economic value to the resort and other projects and thus to the those with a financial interest in the resort and other projects, since the projects cannot be built or operated without them. Defendant will receive value from the permits and approvals through his financial stake in the company receiving the permits and approvals, and thereby will accept a present or emolument from Indonesia, a foreign State.
Other Domestic and International Properties and Businesses 128. Defendant owns, operates, and licenses numerous other businesses throughout the United States and abroad, including other hotels, other properties for sale or lease, and golf courses and clubs.48 Each of those hotels, golf clubs, or other businesses sets rates that far exceed the marginal cost of providing the associated services and products. These revenues then flow to Defendant. After 12:01 pm on January 20, 2017, Defendant, through at least one of his various businesses, properties, and other entities, has received one or more payments in excess of marginal costs from foreign states and will continue to do so. B. Defendant’s Domestic Emoluments Clause Violations 129. As alleged above, Defendant owns and controls hundreds of businesses throughout the country, including hotels and other properties. Through these entities and agreements, Defendant personally benefits from their business dealings, and Defendant is and
48 U.S. Office of Gov’t Ethics, Donald J. Trump 2016 Executive Branch Personnel Public Financial Disclosure Report (May 16, 2016), http://bit.ly/2gBUwIV.
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will be enriched by any business in which they engage with state governments or agencies of the U.S. government.
130. On August 5, 2013, a business entity ultimately owned primarily by Defendant—Trump Old Post Office LLC—signed a 60-year lease with the General Services Administration—an independent agency of the United States, whose administrator is appointed by the President—to open a hotel in the “Old Post Office” Building in Washington, D.C.
131. More than 76% of Trump Old Post Office LLC is owned by DJT Holdings LLC, which is in turn owned almost entirely by the Donald J. Trump Revocable Trust, of which Defendant is the sole beneficiary. The hotel opened at this site is The Trump International Hotel Washington, D.C. Defendant has not divested his interest in the lease since becoming President.
132. Section 37.19 of the Old Post Office lease states: “No . . . elected official of the Government of the United States . . . shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom.”
133. Section 27.1 of the Old Post Office lease outlines what constitutes a “tenant’s default.” A “non-monetary breach” includes “any breach by the Tenant of any other terms, obligations, conditions, agreements or covenants under this Lease,” if that breach continues for 30 days after the tenant is given notice of it.
134. A violation of Section 37.19 is a non-monetary breach and a default unless it is remedied within 30 days after notice from the General Services Administration (“GSA”).
135. Accordingly, Defendant has been in breach of the lease with the GSA since 12:01 pm on January 20, 2017, when he became President.
136. Prior to Defendant’s inauguration, the Deputy Commissioner of the GSA indicated to Representatives Elijah Cummings, Peter DeFazio, Gerald Connolly, and André
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Carson that Defendant would be in violation of lease unless he “fully divests himself of all financial interests in the lease” for the Trump International Hotel.
137. Shortly after Defendant’s inauguration, Norman Dong, a GSA official appointed by former President Barrack Obama, became acting administrator.
138. Defendant enjoys the power to fire the head of the GSA. 139. Less than a day later after Mr. Dong assumed his role as acting GSA administrator, Defendant replaced him with Tim Horne, who had coordinated the GSA’s transition with Defendant’s campaign.49 140. On March 16, 2017, Defendant released a proposed 2018 budget. The proposed budget increases the funding available to the GSA, whereas it cuts all or nearly all other non-defense-related agencies’ budgets.50 141. The GSA issued a letter on March 23, 2017 stating that Trump Old Post Office LLC “is in full compliance with Section 3719 [of the Lease] and, accordingly, the Lease is valid and in full force and effect.” 51 142. This determination by the GSA is contrary to the plain meaning of the lease terms. 143. A significant portion of the GSA’s March 23, 2017 letter reviews the purported financial benefits of the Lease to the GSA and tax payers. This discussion is immaterial to whether Lease’s terms were breached when Defendant became President.
49 Isaac Arnsdorf, Trump picks leader for federal agency overseeing his D.C. hotel, POLITICO (Jan. 26, 2017, 2:55 PM), http://politi.co/2psgMfU.
50 Office of Mgmt. & Budget, Exec. Office of the President, Fiscal Year 2018 (2017), http://bit.ly/2nvjrBO.
51 Letter from Kevin M. Terry, Contracting Officer, United States Gen. Servs. Admin., to Donald J. Trump, Jr., (March 23, 2017), http://bit.ly/2nhKfaB.
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144. The March 23, 2017 letter attaches an amendment to the agreement governing the business of Trump Old Post Office LLC. This amendment is the basis of the GSA’s position that the tenant is in compliance with the Lease, but the letter does not explain how the amendment brings the tenant into compliance. In fact, as described above, the amendment does not prevent Defendant from receiving “any benefit” from the Lease, and Trump Old Post Office LLC remains in breach of the Lease.
145. In forbearing from enforcement of the Old Post Office Lease’s default and termination procedures, despite the tenant’s breach of its terms, and in cooperating with the tenant in attempting to create the appearance of compliance with the Lease, the federal government has given Defendant something of great value. Pursuant to this decision, Defendant has received an emolument.
146. Additionally, Defendant, through entities he owns, is seeking a $32 million historic preservation tax credit for the Trump International Hotel.
147. Approval of this substantial tax credit is at the discretion of the National Park Service, an instrumentality of the federal government under Defendant’s authority.52 If approved, the tax credit would offset approximately 20% of the cost of rehabilitating the building in which the Trump International Hotel is operating.
148. On November 14, 2016, Defendant received approval from the National Park Service, for the second step of the three step-approval process for the tax credit. If final approval is granted, it will constitute an emolument, as the decision is wholly committed to the discretion of the agency.
52 Eric Levitz, Trump Won the Presidency, Then Approval on a Tax Subsidy for His Hotel, N.Y. Mag. (November 30, 2016, 4:17 PM), http://nym.ag/2oFF1o9.
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149. On information and belief, state and local governments have or will continue to make payments for the use of facilities owned or operated by Defendant for a variety of functions. The Defendant will receive a portion of those payments, which constitute emoluments prohibited by the Domestic Emoluments Clause.
C. Post-Inauguration Premium for Defendant’s Goods and Services 150. Since Defendant’s inauguration as President, goods and services sold by his various businesses have sold at a premium. Defendants’ high office gives the Trump brand greater prominence and exposure. Moreover, these goods and services provide a unique benefit: access to, influence on, and the good will of the President of the United States. 151. Thus, for example, the starting rate for guest rooms at Defendant’s Old Post Office hotel increased to $500 on most nights, up hundreds of dollars from when the hotel first opened shortly before Defendant’s election.53 152. Further, the annual rate for membership at Defendant’s Mar-a-Lago resort doubled from $100,000 to $200,000 shortly after he was elected.54 D. CREW’s Injuries 153. Defendant’s violations of the Emoluments Clauses have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW’s ability to accomplish its mission. CREW has had to counteract Defendant’s violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and specific mission that
53 Julie Bykowicz, Trump Hotel May Be Political Capital of Nation’s Capital, Associated Press (Mar. 5, 2017), http://apne.ws/2pL6xQs.
54 Robert Frank, Mar-a-Lago membership fee doubles to $200,000, CNBC (Jan 25, 2017, 12:41 PM), http://cnb.cx/2kjIc2j.
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it has, and because Defendant’s novel and opaque system for receiving payments perceptibly impairs CREW’s daily operations.
154. There is a direct conflict between Defendant’s violations of the Emoluments Clauses and CREW’s mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant’s violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President’s motives in making decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.
Diversion of CREW’s Communications Resources 155. CREW has expended a significant amount of time and resources since the election gathering information about the Emoluments Clause violations, and educating the public about the Emoluments Clauses and Defendant’s violations of them. CREW has received hundreds of requests from the media about Defendant’s conflicts of interest, including hundreds regarding the Emoluments Clauses and Defendant’s violations of them. Many of these media requests sought explanations of the clauses and their applicability, and CREW has spent a substantial number of hours responding to them. As a result of these efforts to educate the public as CREW’s mission requires, members of CREW’s staff and its board of directors repeatedly have been interviewed by and quoted in the news media discussing the Emoluments Clauses and Defendant’s violations of them. These media requests are certain to continue, and CREW will continue to need to expend time and resources to respond to them. 156. CREW regularly issues press releases and statements, and responds to requests for information and comments from the media on a range of topics, including but not limited to
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ethics, corruption, campaign finance, and accountability. Both before and after the election, CREW received hundreds of questions from the news media about Defendant’s businesses and conflicts of interest, including hundreds related to the Emoluments Clauses. CREW has diverted its time and resources from its other public-education activities to respond to these questions. CREW normally responds to nearly every press request. However, due to the volume of requests from national news media about Defendant’s conflicts of interest, including his violations of the Emoluments Clauses, CREW has not had the time and resources to respond to requests from many smaller and regional outlets regarding, for example, local money-in-politics issues and congressional ethics issues.
Diversion of CREW’s Legal Resources 157. CREW’s in-house attorneys have diverted their time and resources from other projects to counteract Defendant’s violations of the Emoluments Clauses. Since the election, CREW has received numerous requests for information, guidance, and advice about the Emoluments Clauses from policymakers. To respond to those requests, and as part of CREW’s advocacy in support of its mission of ensuring the integrity of government officials, CREW has expended significant resources conducting legal research regarding the history and scope of the Emoluments Clauses. Moreover, CREW’s attorneys, including its executive director, have spent a significant amount of time on phone calls and in meetings responding to those inquires. 158. CREW’s attorneys also have conducted legal research to respond to many of the requests for information from the news media regarding the Emoluments Clauses. In addition, CREW’s attorneys and researchers have assisted in researching and drafting publications educating the public about the clause and the impact of Defendant’s violations of it. 159. CREW also has conducted extensive legal research and analysis of potential legal actions to counteract Defendant’s violations of the Emoluments Clauses. CREW’s
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attorneys have researched and analyzed potential lawsuits that could be used to enforce the clauses, drafted this complaint, and expended resources to file it. CREW’s attorneys also have researched and analyzed the potential for filing complaints with government agencies.
160. CREW further has filed Freedom of Information Act requests to obtain records related to potential violations of the Emoluments Clauses. For example, on December 22, 2016, CREW sent two FOIA requests to the Department of Justice Office of Legal Counsel (“OLC”). One request sought all OLC opinions discussing the Domestic Emoluments Clause. The second sought all OLC opinions provided to the Office of Government Ethics or the GSA after November 8, 2016.
161. In addition, due in part to the volume of legal issues related to Defendant’s conflicts of interest, including the need to counteract his violations of the Emoluments Clauses, CREW hired two additional senior attorneys in December 2016 and January 2017 to strengthen CREW’s ability to address these issues.
162. This use of time and resources on legal matters related to Defendant’s violations of the Emoluments Clauses is certain to continue in order for CREW to seek to fulfill its mission, despite the challenges posed by Defendant’s violations of the Emoluments Clauses. In addition to needing to monitor Defendant’s business interests for potential violations, CREW attorneys will, among other things, continue to need to evaluate payments to Defendant’s hotels and other business interests to determine if they violate the Emoluments Clauses; research and analyze possible legal actions; and draft, file, and potentially litigate related Freedom of Information Act requests.
163. The time and resources CREW has used and will continue to use to counteract Defendant’s violations of the Emoluments Clauses were and will continue to be diverted from other legal projects and activities in which CREW would have otherwise engaged.
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164. In the months immediately following elections, CREW regularly has drafted and filed complaints for violations of campaign finance and other laws related to political activity. In January 2013, for example, CREW filed complaints with the Federal Election Commission (FEC) and the Department of Justice (DOJ) alleging that several individuals, companies, and a super PAC made and accepted an illegal $1 million conduit contribution during the 2012 election.55 CREW also filed FEC and DOJ complaints in November 2012 against a section 501(c)(4) “dark money” organization for failing to disclose the identities of donors who contributed $6 million to fund campaign advertisements in Ohio during the 2012 campaign.56 Similarly, in November 2014, CREW filed a complaint with the IRS against another section 501(c)(4) organization that violated its tax-exempt status by operating almost entirely for the private benefit of a political candidate and public official by spending nearly all of its money in 2013 and 2014 on advertisements that either directly supported the candidate’s reelection or heaped praise on him in a transparent attempt to boost his political advancement and agenda.57
165. During the 2016 election, CREW continued to track the spending and activities of candidates and outside groups engaged in politics, and intended to review campaign finance and tax records following the election. CREW expected to continue conducting that research after the election and to file complaints against several organizations regarding their compliance with campaign finance and tax law. Although CREW has been able to expend some resources on these activities and did file one complaint it drafted before the election, it has not been able to
55 CREW Files DOJ, FEC Complaints Against Payday Lender For Illegal Conduit Contribution to Super PAC (Jan. 8, 2013), http://bit.ly/2oQjriL.
56 CREW Files FEC Complaint Against Crossroads GPS For Failing to Disclose Donors (Nov. 15, 2012), http://bit.ly/2puYE28.
57 CREW Files IRS Complaint Against the Kentucky Opportunity Coalition (Nov. 24, 2014), http://bit.ly/2oiKXCr.
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complete research for or draft and file other complaints in part because it needed to divert time and resources to counteract Defendant’s violations of the Emoluments Clauses.
166. In recent years, CREW has pursued a project related to campaign finance and ethics in the states. Work on that project has included, among other things, monthly concentrated periods for CREW staff to conduct research and explore potential legal actions. CREW has not been able to conduct many aspects of this project, including the monthly staff work periods, since just after the 2016 election due to the need to divert its time and resources to responding to Defendant’s conflicts of interests, including his violations of the Emoluments Clauses. CREW does not expect to have the resources to conduct these activities in the foreseeable future.
167. CREW also researches, drafts, and files comments with government agencies related to rulemakings and other regulatory actions. For example, in the months following the 2014 elections, CREW drafted comments in response to an FEC rulemaking notice,58 and filed the comments in January 2015.59 Following the 2016 elections, several FEC rulemaking comment periods were open. CREW considered filing comments in these proceedings, but did not do so due to the need to divert its time and resources to responding to Defendant’s conflicts of interests, including his violations of the Emoluments Clauses.
Diversion of CREW’s Research Resources 168. Defendant’s violations of the Emoluments Clauses also have required CREW to expend a significant amount of time and resources to research and monitor Defendant’s business
58 Advance Notice of Proposed Rulemaking, Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues, 79 Fed. Reg. 62361 (Oct. 17, 2014) (REG 2014-01).
59 CREW to FEC: Comments on Addressing Corruption and Deficiencies in Disclosure (Jan. 15, 2015), http://bit.ly/2nWEWiI.
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interests. Since the November 2016 election, CREW researchers have dedicated significant time and effort to developing a comprehensive understanding of Defendant’s business empire and conflicts of interest, particularly regarding his business ties to foreign companies and governments that run a strong risk of resulting in a violation of the Emoluments Clauses. For example, CREW researchers have compiled and analyzed data regarding the more than 500 business entities Defendant listed on his 2016 personal financial-disclosure form, developing that information for both internal and external uses. As part of that project, CREW researchers devoted at least seventy hours to creating a series of infographics to explain the Defendant’s businesses and income, emphasizing the Defendant’s foreign businesses.60 This project began on November 28, 2016 and is not yet fully completed. Every member of CREW’s research team has worked on this project on a near-daily basis.
169. This project was launched in part to aid in responding to questions from the news media about the extent of Defendant’s business dealings. As explained above, CREW has received hundreds of questions from the news media about Defendant’s businesses, including his foreign businesses, and CREW determined that a comprehensive internal resource was necessary to help answer those questions.
170. As a result of Defendant’s decision to not divest himself from his properties and business interests, CREW will need to continue to expend significant time and resources to research and monitor Defendant’s violations of the Emoluments Clauses. As part of its mission, CREW will need to research and monitor Defendant’s businesses to determine if he receives any foreign emoluments through them. Payments to his businesses, however, are rarely public,
60 John Morgan, et al., 5 Graphics to Help You Understand President Trump’s Conflict of Interest (Feb. 22, 2017), http://bit.ly/2lKJ419.
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requiring CREW to expend resources to uncover them. Again, this will require significant time and resources as payments to hotels and other business entities are rarely public, and neither Defendant nor his attorney announced any system for transparency or accountability for these or any other foreign payments. Further, Defendant has intentionally made it more difficult to obtain information about foreign payments. Defendant, for instance, has refused to release his tax returns, contrary to the norm for the last forty-five years. Further, according to media reports, the press was banned from his D.C. hotel at times during the week of the inauguration.61
171. The time and resources CREW has used and will continue to use to research Defendant’s business interests related to violations of the Emoluments Clauses were and will continue to be diverted from other research projects and activities in which CREW would have otherwise engaged. In the months immediately following elections, CREW traditionally has produced research and reports looking back at money-in-politics issues and players in that election cycle. In December 2012, for example, CREW published Stealth Donors, a report on donors who gave more than $1 million to super PACs trying to influence the 2012 election but whose efforts to sway voters were largely out of the public view.62 CREW similarly researched and published in December 2014 a series of blog posts on “dead-end disclosure,” practices used to keep secret the identities of donors who give money to outside groups attempting to influence elections.63
172. CREW intended to conduct similar research and analysis on campaign-finance
61 Daniel Lippman, Trump’s D.C. hotel bans press during inauguration week, POLITICO (Jan. 18, 2017), http://politi.co/2jo2jw1.
62 Stealthy Super PAC Donors Stay Under the Radar (Dec. 3, 2012), http://bit.ly/2pbnuam. 63 Matt Corley & David Crockett, CREW Series: Dead End Disclosure in the 2014 Elections (Dec. 15, 2014), http://bit.ly/2oQ3glF.
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issues in the aftermath of the 2016 election and expected to publish the results, but has not had time and resources to follow through on these plans or develop other evaluations of spending in the 2016 election. Instead, CREW needed to divert its resources to research and analyze Defendant’s business interests, particularly those related to violations of the Emoluments Clauses. In early 2016, for example, CREW published a report on the post-2014 election contributions to new members of Congress by special interest PACs.64 CREW intended to review similar postelection campaign contributions to newly elected members in December 2016 and likely would have published a follow-up report, but did not do so due to the need to commit resources to researching Defendant’s business interests.
173. CREW also normally obtains and analyzes tax returns of nonprofit groups engaged in political activities starting in the middle of November, when most of those tax returns are filed with the IRS. In past years, that research and analysis regularly has resulted in reports to educate the public, and sometimes in complaints to the IRS. In November and December 2014, for instance, CREW published two blog posts based on findings from new nonprofit tax returns filed that November,65 and similarly published a blog post in November 2015 based on a nonprofit tax form filed that November.66 Although CREW was able to send requests to the IRS for nonprofit tax forms filed in November 2016, it has not been able to devote as much time or resources to analyzing and subsequently writing about the information in tax returns obtained
64 Welcome to Washington: New Members of Congress Attract Special Interest Money (May 9, 2016), http://bit.ly/2pvfkXh.
65 Matt Corley, Crossroads GPS and Kentucky Opportunity Coalition Have, Word for Word, the Same Mission (Nov. 20, 2014), http://bit.ly/2pv3gFr; Dr. Evil Meets the Kochtopus: Americans for Prosperity Now Supporting Berman Group (Dec. 2, 2014), http://bit.ly/2oGyv1T.
66 Matt Corley, Freedom Partners Admits Issue Ads are Aimed at Influencing Elections (Nov. 19, 2015), http://bit.ly/2oiTXYa.
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and published by other sources. As a result, for example, for the first time since 2013, CREW has not published any analysis of the annual tax form filed by Freedom Partners Chamber of Commerce, a critical component in a network of politically active nonprofit groups.
Perceptible Impairment of CREW’s Programmatic Functions and Fundamental Services 174. In addition to the diversion and depletion of CREW’s resources, CREW is further injured because Defendant’s violations of the Emoluments Clauses increase the costs to CREW to carry out its mission in the normal course of business. By accepting presents and emoluments through nonpublic channels, Defendant’s violations will deprive CREW of information about financial support Defendant will be receiving from foreign, state, and the federal governments, forcing CREW to expend resources to uncover his violations of the Emoluments Clauses. 175. Defendant is the most powerful and most prominent official of the United States government. If he is permitted to violate the Constitution or escape monitoring of his financial transactions for corruption—core evils CREW fights against—that would greatly undermine CREW’s mission, making it harder to hold less senior officials accountable. Thus, while it takes substantially greater resources to uncover Defendant’s financial dealings and review them for violations of the Emoluments Clauses and conflicts of interest than it does to complete such work with respect to other federal officials, it is essential that CREW prioritize Defendant’s violations of the Emoluments Clauses and conflicts of interest over those of lower level officials. The difficulty in addressing Defendant’s violations and conflicts, given lack of access to information, and the inability, with the resources available, to complete all of CREW’s other usual work, means Defendant’s violations of the Emoluments Clauses directly impede CREW’s ability to fulfill its mission.
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176. In the course of CREW’s normal activities and daily operations, and in order to carry out CREW’s mission, CREW obtains information about financial support received by a public official or candidate from public records and filings such as campaign-finance reports and personal financial-disclosure forms. Such disclosures allow CREW to monitor public corruption and inform the public about conflicts of interest. As alleged above, CREW uses that information to craft reports and complaints and to advise policymakers and reporters as part of CREW’s daily programmatic functions and its fundamental services.
177. Presents and emoluments provided to Defendant through his businesses, however, will rarely be public—especially since Defendant has eschewed mechanisms for transparency, such as releasing tax returns—and CREW will need to expend significant resources to uncover those payments. For example, a foreign country’s payments for an opulent reception at one of Defendant’s hotels, or the terms of a lease for a foreign-state-owned bank at one of his building, are not public information. To try to determine if Defendant is receiving prohibited foreign emoluments that raise concerns of corruption and conflicts of interest, and in order for CREW to continue to carry out its mission through its daily operations and fundamental services, CREW has needed and will need to continue expending significant resources far in excess of those required if money transfers to Defendant occurred through more traditional and transparent means.
178. Defendant’s activities are at loggerheads and directly conflict with CREW’s mission.
179. Accordingly, Defendant’s use of a novel and opaque method for receiving illicit and corrupting payments denies CREW information CREW would typically use to carry out its daily programmatic operations and fundamental services. Defendant’s activities therefore impede CREW’s operations, to the injury of CREW.
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E. ROC United’s Members’ Injuries 180. ROC United, a nonprofit organization, has nearly 25,000 restaurant-employee members; through its project RAISE, it has over 200 restaurant members; and through its project Diners United, it has about 3,000 diner members. ROC United engages workers, employers, and consumers to improve wages and working conditions in the restaurant industry, including by providing job training, placement, leadership development, civic engagement, legal support, and policy advocacy. 181. A project of ROC United, RAISE seeks to work with restaurant owners to implement sustainable business models that champion living wages, basic benefits, fair promotion policies, environmental sustainability, safe and healthy workplaces, and other “high road” employer practices. 182. Each category of ROC United members has its own leadership committee. Worker members are organized in ten local offices and as online members. Those local offices send members to ROC United’s National Leadership Network. Restaurant members of RAISE, which include restaurants located in both Washington, D.C. and New York City, volunteer to serve on the RAISE steering committee. Consumer members of Diners United volunteer to serve on the Diners United board of directors. The National Leadership Network and RAISE steering committee elect worker and restaurant members to ROC United’s Board of Directors. 183. RAISE’s steering committee holds regular meetings and is responsible for determining and implementing RAISE’s agenda. 184. The majority of the members of the board of directors of ROC United are members of ROC United, elected through the three membership leadership committees.
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185. ROC United’s Board of Directors is responsible for determining and implementing its mission, monitoring its programs, strategic planning, fundraising, budgeting, and policy development and oversight.
186. Each leadership entity—National Leadership Network, RAISE’s steering committee, and Diners United’s board—conducts monthly calls with ROC United’s leadership and discusses campaigns and members’ needs and concerns.
187. Through their representation on the Board of Directors, and through the regular monthly calls between the three leadership committees and ROC United’s leadership, ROC United’s members play a substantial role in determining and implementing ROC United’s mission and initiatives.
188. Each RAISE member had an in-depth orientation prior to joining ROC United. RAISE has regular quarterly meetings of its membership and an annual conference.
189. About 16,000 of ROC United’s worker members have been through an inperson orientation; the remaining 9,000 worker members signed up online. Each of the ten local ROC United offices conducts monthly membership meetings for worker members, and there is an annual conference.
190. ROC United emails a monthly newsletter that is distributed to all of its restaurant and worker members and keeps them informed concerning the status of ROC United’s initiatives. ROC United also sends email blasts to its full membership on a weekly basis.
191. ROC United also owns and operates the restaurant COLORS in New York City and Detroit, and will soon be opening its Washington, D.C. location.
192. ROC United brings this action on behalf of its members to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal to avoid these and other violations of the Emoluments
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Clauses, ROC United’s members have been significantly injured and will continue to be injured without relief from this Court.
193. While many individual members of ROC United, including members of RAISE, could bring suit in their own right, it is more efficient for them to act as a group, through ROC United. Since they seek only declaratory and injunctive relief, not damages, individual actions would be unnecessarily duplicative.
194. It is consistent with ROC United’s mission to protect its worker members from being deprived of wages or tips because they work for restaurants that are subject to loss of business due to foreign states, the United States, or state or local governments patronizing establishments with financial connections to Defendant rather than restaurants where ROC United members work. It is further consistent with ROC United’s mission and its RAISE project’s purpose to protect restaurant members, who are committed to fair business practices, from being subject to loss of business due to foreign states, the United States, or state or local governments patronizing establishments with financial connections to Defendant rather than restaurant members of ROC United.
Injuries to ROC United’s Restaurant Members 195. ROC United’s members through its project RAISE include award-winning and nationally renowned restaurants, including several that have earned prestigious Michelin stars. Diners at these restaurants—especially those located in Washington, D.C. and New York— frequently include diplomats and other officials of foreign states, the United States, and various state and local governments traveling on government business, and thus paying for their meals with government funds. Several of ROC United’s restaurant members also host and/or cater government events, including for officials and employees of foreign states, the United States, and various state and local governments.
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196. Hotels owned by Defendant and those in which he has a financial interest include restaurants that compete directly with restaurant members of ROC United by providing the same or similar services in the same marketplace. For instance, Trump International Hotel & Tower New York includes restaurants Jean-George and Nougatine; Trump SoHo New York includes restaurant Koi SoHo; and Trump International Hotel, Washington, D.C. includes restaurant BLT Prime. Moreover, Defendant owns the restaurant in the Washington, D.C. hotel through various business entities and merely licenses the name from BLT Prime and pays BLT Prime to operate it.67 Several of the restaurant members of ROC United are located near these hotels with restaurants and compete for the same clientele.
197. Other properties owned by Defendant also include restaurants that directly compete with restaurant members of ROC United by providing the same or similar services in the same marketplace. For example, the Trump Grill is located in Trump Tower, and the World Bar is located in Trump World Tower, both in New York City. Further, Defendant, through various business entities, owns Trump Grill.
198. ROC United’s restaurant members have been harmed and will continue to be harmed by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local governments.
199. Officials of foreign states and of the United States and various state and local governments have purchased and will use their government’s funds to purchase food and services from one or more restaurants owned by Defendant, instead of from competing restaurants that are members of ROC United.
67 Jessica Sidman, How Donald Trump Lost His DC Restaurants, Washingtonian (Oct. 23, 2016), http://bit.ly/2htYzq9.
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200. Officials of foreign states and of the United States and various state and local governments who stay at Defendant’s hotels on official business or who are tenants in Defendant’s properties have and will pay with government funds to dine at restaurants located in those hotels or properties—instead of at competing restaurants that are members of ROC United.
201. Defendant also has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to restaurants located in hotels and properties owned by Defendant. For some restaurants, such as BLT Prime and Trump Grill, Defendant owns the restaurants directly, and revenue to those restaurants from foreign states and from the United States and state and local governments, is revenue to Defendant. As to other restaurants, the revenue that they receive, including from foreign states and from the United States and state and local governments, affect the amount of rent that hotels and properties in which Defendant is financially interested are able to charge the restaurants.
202. Additionally, as alleged herein, Defendant has used his official position as President to generate business to his hotel properties and their restaurants from officials of foreign states, the United States, and/or state and local governments. As set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community, members of which have specifically stated they are more likely to pay for goods and services at Defendant’s properties because of his official position.
203. Restaurant members of ROC United that compete with restaurants located in Defendant’s hotels and other properties have been harmed and will be harmed due to loss of business by Defendant’s receipt of benefits from foreign states, the United States, and various
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state and local governments. Injuries to ROC United’s Worker Members 204. ROC United’s worker members have also been injured in connection with
Defendant’s receipt of payments from foreign states, the United States, and state and local governments, through his financial interest in businesses including hotels and restaurants.
205. ROC United’s worker members include employees at restaurants that compete directly with restaurants located in Defendant-owned restaurants and restaurants in hotels and other properties owned by Defendant or in which Defendant has a financial interest by providing the same or similar services in the same marketplace. In particular, ROC United’s worker members include employees of award-winning and nationally renowned restaurants located near restaurants in which Defendant has a financial interest.
206. Diners at these restaurants—especially those located in Washington, D.C. and New York—frequently include diplomats and other officials of foreign states, the United States, and various state governments traveling on official business, and thus paying with their government’s funds. Restaurants at which ROC United worker members are employed also host and/or cater government events, including for officials and employees of foreign states, the United States, and various state and local governments.
207. ROC United’s worker members have been harmed and will continue to be harmed by Defendant’s receipt of payments from foreign states, the United States, and state and local governments, through his financial interest in businesses including hotels and restaurants.
208. Officials of foreign states and of the United States and various state and local governments have and will use their government’s funds to purchase meals from one or more restaurants owned by Defendant or in which Defendant has a financial interest, instead of from competing restaurants that employ ROC United’s members.
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209. Officials of foreign states and of the United States and various state and local governments who stay at Defendant’s hotels have and will use their government’s funds to pay to dine at restaurants located in Defendant’s hotels, instead of at competing restaurants that employ ROC United’s members.
210. Defendant also has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to restaurants located in hotels and properties owned by Defendant. For some restaurants, such as BLT Prime and Trump Grill, Defendant owns the restaurants directly, and revenue to those restaurants from foreign states and from the United States and state and local governments is revenue to Defendant. As to other restaurants, the revenue that they receive, including from foreign states and from the United States and state and local governments, affect the amount of rent that Defendant’s hotels and properties are able to charge the restaurants
211. Additionally, as alleged herein, Defendant has used his official position as President to generate business to his hotel properties and their restaurants from officials of foreign states, the United States, and/or state and local governments. As set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community, members of which have specifically stated they are more likely to pay for goods and services at Defendant’s properties because of his official position.
212. ROC United workers’ members’ pay, including the amount received in tips, depends on the amount of business that the restaurants that employ them are able to attract. Accordingly, worker members of ROC United who are employed by restaurants that compete with restaurants located in Defendant’s hotels and other properties, including restaurants owned by Defendant, have been harmed and will be harmed, by loss of income, due to Defendant’s
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receipt of benefits from foreign states, the United States, and various state governments. Injuries to ROC United’s COLORS Restaurants 213. ROC United owns and operates the restaurant COLORS, which serves locally
sourced foods. Diners at COLORS include officials of foreign states or their subdivisions, the United States, and various state and local governments traveling on government business, and thus paying for their meals with government funds.
214. Hotels owned by Defendant and those in which he has a financial interest include restaurants that compete directly with COLORS by providing the same or similar services in the same marketplace. For instance, Trump SoHo New York includes restaurant Koi SoHo. COLORS NY is located in Manhattan near Trump SoHo and competes with restaurants located there for clientele.
215. COLORS has been harmed and will continue to be harmed by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local governments.
216. Officials of foreign states and of the United States and various state and local governments have purchased and will use their government’s funds to purchase food and services from one or more restaurants owned by Defendant, instead of from competing restaurants like COLORS.
217. Officials of foreign states and of the United States and various state and local governments who stay at Defendant’s hotels on official business or who are tenants in Defendant’s properties have and will pay with government funds to dine at restaurants located in those hotels or properties—instead of at competing restaurants like COLORS.
218. Defendant also has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to
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restaurants located in hotels and properties owned by Defendant. For some restaurants, such as BLT Prime and Trump Grill, Defendant owns the restaurants directly, and revenue to those restaurants from foreign states and from the United States and state and local governments is revenue to Defendant. As to other restaurants, the revenue that they receive, including from foreign states and from the United States and state and local governments, affect the amount of rent that hotels and properties in which Defendant is financially interested are able to charge the restaurants.
219. Additionally, as alleged herein, Defendant has used his official position as President to generate business to his hotel properties and their restaurants from officials of foreign states, the United States, and/or state and local governments. As set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community, members of which have specifically stated they are more likely to pay for goods and services at Defendant’s properties because of his official position.
220. COLORS has been harmed and will be harmed by loss of business due to Defendant’s receipt of benefits from foreign states, the United States, and various state and local governments.
F. Jill Phaneuf’s Injuries 221. Plaintiff Jill Phaneuf is an individual resident of Washington, D.C. She has worked for hotel owners in Washington, D.C. for several years. In her current position, she works with a hospitality company to book events for two hotels, the Kimpton Carlyle Hotel and the Kimpton Glover Park Hotel. She specifically seeks to book embassy functions and political functions involving foreign governments, in addition to other events. Her compensation depends
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in large part on payment of a percentage of the gross receipts arising from events that she generates for the hotels.
222. The hotels for which Ms. Phaneuf seeks to book embassy and political functions and other events compete with hotels owned by Defendant or in which Defendant has a financial interest.
223. Hotels owned by Defendant and those in which he has a financial interest compete directly with hotels for which Ms. Phaneuf works to book events by providing the same or similar services in the same marketplace. For example, as set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community.
224. Foreign states have and will host events at hotels owned by Defendant, instead of at competing hotels.
225. As an individual working to book events at competitor hotels, Ms. Phaneuf will be injured due to loss of commission-based income.
226. Defendant has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to hotels owned by Defendant.
227. Ms. Phaneuf will continue to be harmed by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local government.
G. Eric Goode’s Injuries 228. Plaintiff Eric Goode is an individual resident of New York, New York. Mr. Goode is the owner of several celebrated hotels, restaurants, bars, and event spaces in New York.
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These include the Maritime Hotel located in Chelsea; the Bowery Hotel and Ludlow Hotel, both in the Lower East Side; and the Jane Hotel in the Meatpacking District. Among the restaurants that Mr. Goode owns are the Park, Waverly Inn, and Gemma, the last of which is located in the Bowery Hotel.
229. Travel & Leisure has called Mr. Goode’s hotels “downtown landmarks known for their stylish accommodations and nightlife” and his restaurants “buzzy.”68 The Bowery Hotel has been referred to as an “essential New York hotel” and “neighborhood gamechanger,”69 which offers “the quintessential New York experience.”70 Its restaurant, Gemma, has been described as one of New York City’s best hotel restaurants with “essential al fresco dining.”71
230. Diners at Mr. Goode’s restaurants and guests at his hotels frequently include diplomats and other officials of foreign states, the United States, and various state governments traveling on official business, and thus paying with their government’s funds.
231. Mr. Goode’s hotels and restaurants compete with hotels and restaurants owned by Defendant, and with restaurants located in hotels and other properties owned by Defendant, or in which Defendant has a financial interest, by providing the same or similar service in the same marketplace.
68 Jacqueline Gifford, Hotelier Eric Goode’s New York City Hotspots, Travel & Leisure (Nov. 10, 2016), http://tandl.me/2qUjUSx.
69 Jessica Dailey, The 18 Essential New York City Hotels, Curbed New York (Nov. 4, 2014), http://bit.ly/2q6SPc2.
70 Catherine Eade, Where the Beckhams and Kardashians REALLY stay: Inside the Big Apple hotels hosting the A-list for New York Fashion Week, Daily Mail (Sept. 11, 2014), http://dailym.ai/1oACWl2.
71 Greg Morabito, A Guide to New York City’s Best Hotel Restaurants, Eater New York (June 24, 2013), http://bit.ly/2qUqN6s.
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232. Foreign states have hosted and will host events at hotels and restaurants in which Defendant has financial interests, instead of at competing hotels and restaurants.
233. Defendant has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to hotels and restaurants owned by Defendant.
234. As a hotel and restaurant owner, Mr. Goode will be harmed due to loss of revenue by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local government.
H. Plaintiffs’ Injuries Warrant an Equitable Remedy 235. Except for those expenses involved in preparing for this specific litigation, CREW would have suffered the injuries described even if it had not filed this case. 236. So long as violations of the Emoluments Clauses are permitted to continue, CREW will continue to suffer from interference with its mission, and with diversion of resources to investigate, track, and educate around violations of the Emoluments Clauses. Monetary relief could not make up for the frustration of CREW’s mission that the emoluments violations cause. 237. The declaratory and injunctive relief that CREW is seeking would provide a remedy for the many injuries described above. If such relief is granted, resolving the disputes between CREW and Defendant over the Emoluments Clauses and enjoining Defendant from violating the Emoluments Clauses, CREW would no longer suffer the diversion and depletion of resources described above. 238. So long as violations of the Emoluments Clauses are permitted to continue, ROC United’s members will continue to suffer from unfair competition as foreign states, the United States, and state and local governments divert their business to restaurants in which Defendant has a financial interest. The ongoing nature of the injury makes monetary relief an
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inadequate remedy for the injuries that emoluments violations cause. 239. The declaratory and injunctive relief that ROC United is seeking would provide
a remedy for the many injuries described above. If such relief is granted, resolving the disputes between ROC United and Defendant over the Emoluments Clauses and enjoining Defendant from violating the Emoluments Clauses, ROC United members would no longer suffer the injuries described above.
240. So long as violations of the Emoluments Clauses are permitted to continue, Ms. Phaneuf will continue to suffer from unfair competition as foreign states, the United States, and state and local governments divert their business to hotels in which Defendant has a financial interest. The ongoing nature of the injury makes monetary relief an inadequate remedy for the injuries that emoluments violations cause.
241. The declaratory and injunctive relief that Ms. Phaneuf is seeking would provide a remedy for the injuries described above. If such relief is granted, resolving the disputes between Ms. Phaneuf and Defendant over the Emoluments Clauses and enjoining Defendant from violating the Emoluments Clauses, Ms. Phaneuf would no longer suffer the injuries described above.
242. So long as violations of the Emoluments Clauses are permitted to continue, Mr. Goode will continue to suffer from unfair competition as foreign states, the United States, and state and local governments divert their business to hotels and restaurants in which Defendant has a financial interest. The ongoing nature of the injury makes monetary relief an inadequate remedy for the injuries that emoluments violations cause.
243. The declaratory and injunctive relief that Mr. Goode is seeking would provide a remedy for the injuries described above. If such relief is granted, resolving the disputes between Mr. Goode and Defendant over the Emoluments Clauses and enjoining Defendant from
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violating the Emoluments Clauses, Mr. Goode would no longer suffer the injuries described above.
I. Other Injuries 244. Beyond the injuries described above, Defendant’s unconstitutional conduct has caused added financial costs and greater logistical difficulties with respect to informing—and helping to protect from corrupt and unethical manipulation—innocent and unaware third parties, including consumers, workers, and small businesses. As the Executive Branch, led by Defendant, shapes the strategy, substance, and timing of its trade and other commercial and financial negotiations with foreign governments, these third parties are at risk of having their economic interests and financial welfare bartered away, with Defendant rewarding foreign governments in connection with his own business interests. 245. With efforts to educate these unknowing third parties obstructed, the consumers, workers, and small businesses, who may not compete directly with the Defendant, but who will surely be impacted by his biased decision-making, will remain in the dark about the conflicting, dual roles that Defendant plays in negotiating with foreign governments, as President and businessman. 246. Competitors of Defendant’s hotels, golf courses, and other properties and businesses also are injured, financially, by the uneven and unfair playing field created by Defendant’s unconstitutional conduct. Those injuries occur both when the competitors lose business directly to Defendant’s businesses and when the competitors’ brands lose economic value in comparison with the enhanced value of Defendant’s brands, including due to foreign and state governments and their agents and instrumentalities seeking to curry favor with Defendant by favoring his businesses.
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V. CLAIMS COUNT I Violations of the Foreign Emoluments Clause (Declaratory and Injunctive Relief) 247. Plaintiffs reallege and incorporate herein by reference each and every foregoing paragraph of this Complaint as if set forth in full. 248. Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause. 249. Together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including without limitation, monetary and non-monetary gifts or transactions, transactions granting special treatment, and transactions above marginal cost. 250. The phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof. 251. Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” violates the Foreign Emoluments Clause. 252. As described more fully in paragraphs 42 to 128 herein, Defendant has committed violations of the Foreign Emoluments Clause and, without this Court’s intervention, will continue to commit violations of the Foreign Emoluments Clause. Defendant is and will be accepting “present[s]” or “Emolument[s]” directly from—or from agents or instrumentalities of—China, the United Arab Emirates, Kuwait, Indonesia, Saudi Arabia, Bahrain, Azerbaijan, Afghanistan, Qatar, India, Georgia, the United Kingdom, and other “foreign State[s],” without seeking or obtaining “the Consent of the Congress.” As described more fully in paragraphs 42 to
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128 herein, Defendant is committing or will commit these violations in connection with transactions involving New York’s Trump Tower, the Trump International Hotel Washington, D.C., Trump World Tower, restaurants Defendant owns or that are located in his hotels or other properties, the television program “The Apprentice” and its spinoffs and international versions, and other business and property interests and transactions in the United States and abroad.
253. There is an actual controversy between Plaintiffs and Defendant as to the meaning of the Foreign Emoluments Clause and its application to Defendant and his conduct.
254. Specifically, Plaintiffs allege that: (a) Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause; (b) together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including above- or below-market rates; (c) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; and (d) Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” constitutes a violation of the Foreign Emoluments Clause. Plaintiffs also allege that Defendant, through the conduct described more fully in paragraphs 42 to 128 herein, is violating or will violate the Foreign Emoluments Clause, and that no proposed plan announced by Defendant or his attorneys can make this conduct constitutional or otherwise remedy these constitutional violations. Defendant disagrees with each of these positions.
255. As a direct result of these violations of the Foreign Emoluments Clause, Plaintiffs have already suffered significant harm. Plaintiffs stand to suffer additional significant harm directly from the further occurrence of these violations.
256. Plaintiffs are entitled to bring this action pursuant to this Court’s inherent ability to award equitable relief where a federal official violates or is about to violate the U.S.
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Constitution or federal law. 257. Plaintiffs are entitled to injunctive relief to stop and prevent the above-
mentioned Foreign Emoluments Clause violations and any other Foreign Emoluments Clause violations. This Court has the power to grant such relief pursuant to its inherent authority to grant equitable relief and 28 U.S.C. § 1331. Such relief would enjoin Defendant from violating the Foreign Emoluments Clause, as construed by this Court, including requiring Defendant to release financial records sufficient to confirm that Defendant is not engaging in any further transactions that would violate the Foreign Emoluments Clause. Without such relief, Plaintiffs will suffer significant injury.
258. Plaintiffs are entitled to declaratory relief under 28 U.S.C. § 2201. A declaration resolving the actual controversy between Plaintiffs and Defendant—as to the meaning of the Foreign Emoluments Clause and whether Defendant’s conduct is violating and will violate the Foreign Emoluments Clause—will serve a useful purpose in settling the legal issues in this action and offering relief from uncertainty. Without this relief, Plaintiffs will continue to suffer significant injury.
COUNT II Violations of the Domestic Emoluments Clause
(Declaratory and Injunctive Relief) 259. Plaintiffs reallege and incorporate herein by reference each and every foregoing paragraph of this Complaint as if set forth in full. 260. Defendant is the President of the United States. 261. The phrase “any other Emolument” under the Domestic Emoluments Clause covers monetary and non-monetary payments or transactions, transactions granting special treatment, and transactions above marginal cost, excluding presents and the President’s “Compensation” as set by Congress.
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262. The phrase “the United States, or any of them” in the Domestic Emoluments Clause includes any part of the federal government, any state government, any local government, and any agent or instrumentality thereof.
263. Defendant’s acceptance of an “any other Emolument” from “the United States, or any of them” violates the Domestic Emoluments Clause.
264. As described more fully in paragraphs 129 to 149 herein, Defendant has committed violations of the Domestic Emoluments Clause and, without this Court’s intervention, will continue to commit violations of the Domestic Emoluments Clause. Defendant has accepted and will accept “Emolument[s]” from the GSA and the National Park Service, instrumentalities of the United States. As described more fully in paragraphs 129 to 149 herein, Defendant committed and will commit these violations in connection with transactions involving the Trump International Hotel, and other business and property interests and transactions in the United States. Such emoluments are not part of Defendant’s congressionally authorized “Compensation.”
265. As a direct result of these violations of the Domestic Emoluments Clause, Plaintiffs have already suffered significant harm. Plaintiffs also stand to suffer additional significant harm directly from the further occurrence of these violations.
266. Plaintiffs are entitled to bring this action pursuant to this Court’s inherent authority to award equitable relief where a federal official violates or will violate the U.S. Constitution or federal law.
267. There is an actual controversy between Plaintiffs and Defendant as to the meaning of the Domestic Emoluments Clause and its application to Defendant and his conduct. Specifically, Plaintiffs allege that: (a) the phrase “any other Emolument” under the Domestic Emoluments Clause covers monetary and non-monetary payments or transactions, transactions
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granting special treatment, and transactions above marginal cost, excluding presents and the President’s “Compensation” as set by Congress as of the time of the President’s inauguration; (b) the phrase “the United States or any of them” under the Domestic Emoluments Clause includes any part of the federal government, any state government, and any agent or instrumentality thereof; and (c) Defendant’s acceptance of an “Emolument” from “the United States, or any of them” constitutes a violation of the Domestic Emoluments Clause. Plaintiffs have also has taken the positions that Defendant, through the conduct described more fully in paragraphs 129 to 149 herein, is violating or will violate the Domestic Emoluments Clause, and that no proposed plan announced by Defendant or his attorneys can make this conduct constitutional or otherwise remedy these constitutional violations. Defendant disagrees with each of these positions.
268. Plaintiffs are entitled to injunctive relief to stop and prevent the abovementioned Domestic Emoluments Clause violations and any other Domestic Emoluments Clause violations. This Court has the power to grant such relief pursuant to its inherent authority to grant equitable relief and 28 U.S.C. § 1331. Such relief would enjoin Defendant from violating the Domestic Emoluments Clause, as construed by this Court, including requiring Defendant to release financial records sufficient to confirm that Defendant is not engaging in any further transactions that would violate the Domestic Emoluments Clause. Without such relief, Plaintiffs will suffer significant injury.
269. Plaintiffs are entitled to declaratory relief under 28 U.S.C. § 2201. A declaration resolving the actual controversy between Plaintiffs and Defendant—as to the meaning of the Domestic Emoluments Clause and whether Defendant’s conduct is violating and will violate the Domestic Emoluments Clause—will serve a useful purpose in settling the legal issues in this action and offering relief from uncertainty. Without this relief, Plaintiffs will continue to suffer significant injury.
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VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in their favor and against Defendant, consisting of: (a) A declaratory judgment, stating that: (1) Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause; (2) together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including without limitation, monetary and non-monetary gifts or transactions, transactions granting special treatment, and transactions above marginal cost; (3) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; (4) Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” constitutes a violation of the Foreign Emoluments Clause; (5) the phrase “any other Emolument” under the Domestic Emoluments Clause covers monetary and non-monetary payments or transactions, transactions granting special treatment, and transactions above marginal cost, excluding presents and the President’s “Compensation” as set by Congress at the time of the President’s inauguration; (6) the phrase “the United States or any of them” under the Domestic Emoluments Clause includes any part of the federal government, any state government,
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any local government, and any agent or instrumentality thereof; (7) Defendant’s acceptance of an “Emolument” from “the United States or
any of them” violates the Domestic Emoluments Clause; (8) Defendant’s conduct, as described more fully in paragraphs 42 to 128
herein, violates or will violate the Foreign Emoluments Clause; and (9) Defendant’s conduct, as described more fully in paragraphs 129 to 149
herein, violates or will violate the Domestic Emoluments Clause. (b) Injunctive relief, enjoining Defendant from violating the Foreign and Domestic Emoluments Clauses, as construed by this Court, and requiring Defendant to release financial records sufficient to confirm that Defendant is not engaging in any further transactions that would violate the Emoluments Clauses; (c) Such other and further relief as this Court may deem just and proper, including reasonable attorneys’ fees and costs under 28 U.S.C. § 2412(a) and (d) or as otherwise appropriate.
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Dated: May 10, 2017
LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767 ERWIN CHEMERINSKY* Dean of the School of Law University of California, Irvine 401 East Peltason Drive Irvine, CA 92697 (949) 824-7722 ZEPHYR TEACHOUT* Associate Professor of Law Fordham Law School 150 West 62nd Street New York, NY 12580 (646) 312-8722
*Affiliations noted for identification purposes only

GUPTA WESSLER PLLC
By: s/ Deepak Gupta Deepak Gupta
AMBASSADOR (RET.) NORMAN L. EISEN Chair, Board of Directors RICHARD W. PAINTER Vice Chair, Board of Directors NOAH BOOKBINDER ADAM J. RAPPAPORT STUART C. MCPHAIL Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W., 6th Floor Washington, D.C. 20001 (202) 408-5565
Attorneys for Plaintiff Citizens For Responsibility And Ethics In Washington
DEEPAK GUPTA** JONATHAN E. TAYLOR RACHEL BLOOMEKATZ MATTHEW SPURLOCK Gupta Wessler PLLC 1735 20th Street, N.W. Washington, D.C. 20009 (202) 888-1741 deepak@guptawessler.com
JOSEPH M. SELLERS** DANIEL A. SMALL CHRISTINE E. WEBBER GEORGE F. FARAH Cohen Milstein Sellers & Toll PLLC 1100 New York Ave., N.W. Suite 500 Washington, DC 20005 202-408-4600 jsellers@cohenmilstein.com
Attorneys For Plaintiffs Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers (ROC) United, Inc., Jill Phaneuf, and Eric Goode
**Admitted pro hac vice

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 Case 1:17-cv-00458-GBD Document 103 Filed 12/21/17 Page 1 of 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF, and ERIC GOODE,

-against-

Plaintiffs,

DONALD J. TRUMP, in his official capacity as President of the United States of America,

Defendant.

MEMORANDUM DECISION AND ORDER
17 Civ. 458 (GBD)

------------------------------------- x

GEORGE B. DANIELS, United States District Judge:

Plaintiffs Citizens for Responsibility and Ethics in Washington ("CREW"), Restaurant

Opportunities Centers United, Inc. ("ROC United"), Jill Phaneuf, and Eric Goode (collectively,

"Plaintiffs"), bring this suit against Defendant Donald J. Trump, in his official capacity as

President of the United States. (Second Amended Complaint ("SAC"), ECF No. 28, at 1.)

Plaintiffs principally allege that Defendant's "vast, complicated, and secret" business interests are

creating conflicts of interest and have resulted in unprecedented government influence in violation

of the Domestic and Foreign Emoluments Clauses of the United States Constitution. (SAC ~ 1

(citing U.S. Const. art. I,§ 9, cl. 8 & art. II,§ 1, cl. 7, respectively).) Plaintiffs seek (i) a declaratory

judgment declaring that Defendant has violated and will continue to violate the Domestic and

Foreign Emoluments Clauses; (ii) an injunction enjoining Defendant from violating the

Emoluments Clauses; and (iii) an injunction requiring Defendant to release financial records in

order to confirm that he is not engaging in further transactions that would violate the Emoluments

Clauses. (Id. ~ 20.)

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Defendant argues that Plaintiffs lack standing to sue and moves to dismiss this lawsuit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(l). (Def.'s Mot. to Dismiss, ECF No. 34; Def.'s Mem. of Law in Supp. of Mot. to Dismiss ("Mot."), ECF No. 35, at 7.) Defendant also moves to dismiss this case for failure to state a claim under the Emoluments Clauses pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). (See Mot. at 26.)
Defendant's motion to dismiss for lack of standing under Rule 12(b)(l) is GRANTED. 1 I. FACTUAL BACKGROUND
A. The Parties Plaintiff CREW is a nonprofit, nonpartisan government ethics watchdog organized under
the laws of the State of Delaware. (SAC if 21.) CREW' s self-proclaimed mission is to "protect[]
the rights of citizens to be informed about the activities of government officials, ensur[e] the integrity of government officials, protect[] [the] political system against corruption, and reduc[e] the influence of money in politics." (Id.) It seeks to advance that mission through a combination of research, advocacy, litigation, and education, all aimed at raising public awareness about the
influence of outside special interests on public officials. (Id. if 22.) For instance, CREW is
involved in a project relating to campaign finance and ethics at the state-level, as well as researching and filing comments with government agencies related to rulemakings and other
regulatory actions, and preparing reports on "money-in-politics issues." (Id. iii! 166-67, 171.)
CREW also analyzes tax returns of nonprofit groups engaged in political activities and publishes
blog posts and reports to educate the public. (Id. if 173.) In addition, during the last several election
1 Because Plaintiffs' claims are dismissed under Rule 12(b)(l), this Court does not reach the issue of whether Plaintiffs' allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6). Nor does this Court address whether the payments at issue would constitute an emolument prohibited by either Clause.
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cycles, CREW has filed numerous administrative complaints with the Federal Election Commission and the Department of Justice alleging violations of campaign finance laws. (Id.
ir 164.)
Plaintiff ROC United is a nonprofit, nonpartisan member-based organization organized
under the laws of the State ofNew York. (Id. if 28.) ROC United's members include nearly 25,000
restaurant employees, over 200 restaurants, and about 3,000 other dining establishments. (Id.
if 11.) ROC United provides "job training, placement, leadership development, civic engagement,
legal support, and policy advocacy" to help improve working conditions in the food service industry. (Id.) Through its RAISE project, ROC United works with restaurant owners to implement sustainable business models that support "high road" employer practices such as paying living wages, providing basic benefits, being environmentally sustainable, and providing safe and
healthy workplaces. (Id. if 181.) ROC United also owns and operates a restaurant in New York City and another in Detroit, with a forthcoming location in Washington, D.C. (Id. if 28.)
Plaintiff Jill Phaneuf, a resident of Washington D.C., works with a hospitality company to book embassy functions and other events tied to foreign governments, as well as other events "in
the Washington, D.C. market." (Id. if 15.) In particular, Phaneuf books events for two Washington
D.C. hotels-the Carlyle Hotel, located just north of Dupont Circle, and the Glover Park Hotel,
located near the area that is colloquially referred to "Embassy Row." (Id. if 15.) Phaneuf alleges
that her compensation consists of a percentage of the gross receipts of the events she books. (Id.) Plaintiff Eric Goode is a New York resident and the owner of several hotels, restaurants,
bars, and event spaces in New York City. (Id. if 18.) He owns the Maritime Hotel located in the
Chelsea neighborhood, the Bowery Hotel and Ludlow Hotel, both of which are located in the Lower East Side, and the Jane Hotel in the Meatpacking District. (Id.) Goode also owns several
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restaurants located in the Bowery Hotel. (Id.) Goode alleges that his hotels and restaurants have typically attrncted business from foreign governments, as well as from federal and state government officials traveling on official business. (Id.)
Defendant Donald J. Trump is the President of the United States of America. Before he was elected President, Defendant amassed ownership and controlling interests in businesses throughout the country and around the world. Defendant is the sole owner of the Trump Organization LLC and The Trump Organization, Inc. (collectively, the "Trump Organization"). (Id. , 42.) Defendant's corporations, limited-liability companies, limited partnerships, and other entities are loosely organized under the Trump Organization. (Id.)
On January 11, 2017, Defendant, then-President-elect, announced that he would tum over the "leadership and management" of the Trump Organization to his sons, Donald Trump, Jr. and Eric Trump. (Id. , 43.) Defendant also announced that he would donate all profits from foreign governments' patronage of his businesses to the U.S. Treasury. (Id.; see also Donald Trump's News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017), http://nyti.ms/2jG86w8.) Although Defendant had established a trust to hold his business assets, Plaintiffs allege that Defendant continues to own and is permitted to take distributions from the trust at any time. (SAC , 44.) Plaintiffs allege that Defendant continues to be informed of the Trump Organization's business activities and that Eric Trump provides business updates to Defendant on a quarterly basis. (Id.)
Through his various business entities, Defendant owns and receives payments from a number of properties and restaurant establishments in the United States. Of particular relevance here, Defendant owns the Trump International Hotel in Washington, D.C. and the BLT Prime, a restaurant located inside the hotel. (Id. ,, 58-59.) He also owns Trump World Tower, a
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condominium high-rise building in New York City located near the United Nations. (Id. , 90.) Trump Tower, a mixed-use skyscraper in New York City, and Trump Grill, a restaurant located inside the tower, are also among the properties owned by Defendant. (Id. ,, 46-47, 56.)
B. Defendant's Alleged Violations of the Domestic and Foreign Emoluments Clauses
Plaintiffs allege that since Defendant's inauguration earlier this year, he has violated and continues to violate the Domestic and Foreign Emoluments Clauses of the Constitution due to the ownership and controlling interests he continues to hold in the Trump Organization and other entities, and the monies he receives as a result. (Id. ,, 7, 42.)
The Domestic Emoluments Clause states that "[t]he President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them." U.S. Const. art. II, § 1, cl. 7. That clause provides that the president's compensation for his services as president shall not change during his term in office, and prohibits him from drawing any additional compensation or salary from the federal or state governments.
The Foreign Emoluments Clause states in pertinent part that "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." U.S. Const. art. I, § 9, cl. 8. That clause provides that certain federal government officials shall
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not receive any form of gift or compensation from a foreign government without Congress's approval. 2
Plaintiffs point to a number of examples of alleged violations of both the Domestic and Foreign Emoluments Clauses. For example, Plaintiffs allege that after the 2016 election, and under pressure from the Trump Organization, the Embassy of Kuwait in Washington D.C. moved its National Day celebration from the Four Seasons Hotel to the Trump International Hotel, spending
an estimated $40,000 to $60,000 for the event. (SAC ifif 72-74.) Other foreign diplomats and
their agents have publicly expressed a desire to patronize the Trump International Hotel and other
properties owned by Defendant to curry favor with the President. (Id. ifif 57-89.) One press
account quoted a "Middle Eastern diplomat" as saying, "[b]elieve me, all the delegations will go"
to the Trump International Hotel. (Id. if 62.) The same account quoted an "Asian diplomat" who
explained, "[w]hy wouldn't I stay at his hotel blocks from the White House, so I can tell the new president, 'I love your new hotel!' Isn't it rude to come to his city and say, 'I am staying at your competitor?"' (Id.)
Plaintiffs allege that, over the last two decades, the Kingdom of Saudi Arabia, as well as the Permanent Missions to the United Nations from India, Afghanistan, and Qatar purchased property at the Trump World Tower, paying anywhere from $4.5 million up to $8.375 million.
(Id. ifif 90-106.) Plaintiffs believe that these foreign entities continue to pay yearly common
charges for building amenities amounting to tens of thousands of dollars each year. (Id.) Plaintiffs point out that none of these countries were included in Defendant's original or revised executive
orders barring visitors from six Muslim-majority countries. (Id. if 110.)
2 For purposes ofthis motion, Defendant has conceded that he is subject to the Foreign Emoluments Clause. (See Tr. of Oral Arg., ECF No. 99, at 94:11-13; Ltr. to the Ct. from Brett A. Shumate dated October 25, 2017, ECF No. 98.)
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Plaintiffs allege that since 2006, Defendant has unsuccessfully sought trademark protection in China for the use of his name in connection with building construction services. After his application was rejected by China's Trademark Office, Defendant appealed to the Trademark Review and Adjudication Board, the Beijing Intermediate People's Court, and the Beijing High People's Court, to no avail. (Id. ~ 111.) In December 2016, shortly after he was elected, Defendant spoke directly with the President of Taiwan, suggesting that the United States might abandon the "One China" policy that it had observed for decades. According to Plaintiffs, Defendant had previously suggested he would end the "One China" policy unless some benefit were received in exchange. (Id. ~ 112.) On February 9, 2017, Defendant spoke with the President of China and pledged to honor the "One China" policy. Five days later, China reversed course and granted trademark protection for the "Trump" name. (Id. ~~ 113-14.) Plaintiffs also allege that the Industrial and Commercial Bank of China, a Chinese majority-state-owned entity, is one of the largest tenants of Trump Tower. (Id.~ 49.)
Plaintiffs allege that the Trump International Hotel's lease with the General Services Administration ("GSA")-an independent agency of the United States, whose administrator is appointed by the president-violates the Domestic Emoluments Clause. (Id. ~~ 130-44.) Prior to taking office, GSA entered into a 60-year lease for what eventually became the site for the Trump International Hotel. (Id. ~~ 130-31.) Section 37.19 of the lease agreement provides that "[n]o ... elected official of the Government of the United States ... shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom." (Id. ~ 132.) Plaintiffs allege that by virtue of his election, Defendant has been in breach of the lease since he took office on January 20, 2017. One week after Defendant released a proposed federal budget increasing GSA's funding while cutting nearly all other non-defense-related spending, GSA issued a letter indicating that, in
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its view, there were no compliance issues with respect to the lease. As of the date the SAC was filed, GSA has not made any effort to enforce the apparent breach against the Trump Organization.
(Id. iii! 135, 140-41, 145.)
Additionally, Plaintiffs contend that Defendant has also benefitted and will continue to benefit from payments to his hotels and restaurants by foreign governments and their agents, as
well as federal, state, and local government officials. (Id. iii! 200-01.)
Plaintiffs assert that they are injured by Defendant's alleged violations of the Emoluments Clauses. Phaneuf and Goode allege that due to Defendant's ongoing financial interest in hotels and restaurants receiving payments from governmental sources, they will suffer increased competition resulting in "loss of commission-based income" and "loss of revenue[.]" (See id.
iii! 225, 227, 234.) Similarly, ROC United alleges that its restaurant and restaurant-employee members have suffered injury in the form of "lost business, wages, and tips." (Id. if 13.) CREW
claims it has been harmed by having to divert and expend its resources to counteract the alleged
violations, impairing its ability to accomplish its mission. (Id. if 153.)
II. LEGAL STANDARD UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(l) "Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a
claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat 'l Aust!. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quotation marks omitted), ajf'd, 561U.S.247 (2010). The party invoking the benefit of federal jurisdiction bears the burden of establishing the existence of that jurisdiction. Sharkey v. Quarantillo, 541 F.3d 75, 82-83 (2d Cir. 2008) (citation omitted).
In deciding a motion to dismiss "pursuant to Rule 12(b)(1), ... the Court must accept as true all material factual allegations in the complaint, but should refrain from drawing any
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inferences in favor of the party asserting jurisdiction." People Unitedfor Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 283 (S.D.N.Y. 2000) (citingAtl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)). "[U]nder Rule 12(b)(l), [a court is] permitted to rely on non-conclusory, non-hearsay statements outside the pleadings." MES., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013). III. STANDING
Central to the question of whether this Court has subject-matter jurisdiction over this case is whether Plaintiffs have legal standing to sue. See Cortlandt St. Recovery Corp. v. Hellas Telecomms. I, S.a.r.l, 790 F.3d 411, 416-17 (2d Cir. 2015). Indeed, "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Raines v. Byrd, 521 U.S. 811, 818 (1997). As the Supreme Court has explained, "[t]he law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches[,]" Clapper v. Amnesty Int 'l USA, 568 U.S. 398, 408 (2013), and "ensure[s] that federal courts do not exceed their authority as it has been traditionally understood." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Accordingly, the standing inquiry is "especially rigorous" where, as here, "reaching the merits of the dispute would force [this Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Clapper, 568 U.S. at 408 (citation and quotation marks omitted).
The "irreducible constitutional minimum of standing" consists of three clements: "(I) 'an injury in fact' to 'a legally protected interest' that is both '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,' (2) 'a causal connection between the injury
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and the conduct complained of,' and (3) that it is 'likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."' Crupar-Weinmann v. Paris Baguette Am., Inc., 861 F.3d 76, 79 (2d Cir. 2017) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). As the parties invoking this Court's jurisdiction, Plaintiffs bear the burden of establishing standing, and at the pleading stage, they must do so by "clearly alleg[ing] facts demonstrating each element." Spokeo, 136 S. Ct. at 1547 (citation omitted).
A. ROC United, Phaneuf, and Goode Lack Article III Standing Defendant contends that Plaintiffs ROC United, Phaneuf, and Goode (the "Hospitality
Plaintiffs") lack standing to bring their claims and that their alleged injuries do not fall within the zone of interests of the Emoluments Clauses. (Mot. at 8-26.)
1. The Hospitality Plaintiffs' Competitor Standing Argument Fails The Hospitality Plaintiffs attempt to rely on the competitor standing doctrine to establish injury in fact. Defendant argues that these Plaintiffs lack competitor standing because they fail to establish that the challenged governmental activity has caused "an actual or imminent increase in competition, which increase ... will almost certainly cause an injury in fact." (Mot. at 20-21 (citing Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010)).) "The Supreme Court has found cognizable injuries to economic competitors." In re US. Catholic Conference, 885 F.2d 1020, 1029 (2d Cir. 1989) (citation omitted); see Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 403 (1987); Ass'n ofData Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152 (1970)). The doctrine of competitor standing recognizes that economic actors "suffer [an] injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition against them." Sherley, 610 F.3d at 72 (citation and quotation marks omitted).
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The doctrine traces its origin to a time when financial institutions started diversifying their service offerings and began competing with firms that had traditionally provided those services. For instance, in Data Processing, an association of data processing service providers challenged a ruling by the Comptroller of the Currency of the United States allowing banks to provide such services and compete in the same market. 397 U.S. at 151. The Court held that the association had standing to bring its claim because it properly alleged that the rule caused plaintiffs "injury in fact" in the form of future and actual loss of profits. Id. at 152; see also Clarke, 479 U.S. at 403 (granting standing to trade association composed of securities brokers, dealers, and underwriters to challenge governmental ruling that banks could act as discount brokers); Inv. Co. Inst. v. Camp, 401 U.S. 617, 620-21 (1971) (granting standing to association of open-end investment companies to challenge ruling that allowed bank entry into the field of collective investment funds); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46 (1970) (holding travel agents had standing to challenge ruling to permit banks to offer travel services).
The Hospitality Plaintiffs argue that the competitor standing doctrine only requires a plaintiff to '"show that he personally competes in the same arena' with the party to whom the defendant has unlawfully bestowed a benefit." (Pls.' Mem. of Law in Opp'n to Mot. ("Opp'n"), ECF No. 57, at 11.) They allege that they compete for government business in the Washington D.C. and New York City restaurant and hotel markets and that they have and will be harmed "due to foreign states, the United States, or state or local governments patronizing establishments with
financial connections to Defendant rather than" Plaintiffs. (See SAC iii! 13, 17, 19, 194, 198, 227,
234.) Defendant argues that the Hospitality Plaintiffs' allegations are far too speculative to give rise to competitor standing and that they have failed to sufficiently allege that they "personally compete[]" with Defendant's hotels and restaurants. (Mot. at 21 (citing US. Catholic Conference,
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885 F.2d at 1029).) In response, the Hospitality Plaintiffs cite declarations from, among others, Goode, ROC United's restaurant members, and industry experts explaining how and in which ways they compete with Defendant's businesses. (See, e.g., Opp'n at 17-18.)
Plaintiffs have failed to properly allege that Defendant's actions caused Plaintiffs competitive injury and that such an injury is redressable by this Court. As noted, Article III "requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant," and for which "prospective relief will remove the harm." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 45 (1976); see also Liberty Glob. Logistics LLC v. US. Mar. Admin., No. 13-CV-0399 (ENV), 2014 WL 4388587, at *5-6 (E.D.N.Y. Sept. 5, 2014) (finding plaintiff had established an injury in fact due to the "well-established concept of competitors' standing" but nonetheless dismissing certain claims for lack of causation) (citation omitted).
In Simon, the plaintiffs were indigent individuals and organizations representing indigents who challenged an IRS rule allowing favorable tax treatment to a nonprofit hospital that only offered emergency-room services to indigents. 426 U.S. at 28. The plaintiffs argued that the IRS rule caused them injury because it "encouraged" hospitals to deny other services to indigents. Id. at 42. The Court held that this alleged injury lacked traceability and redressability because of intervening causal factors. The Court found it "purely speculative whether ... denials of service ... [could] fairly ... be traced to petitioners' 'encouragement' or instead result[ed] from decisions made by the hospitals without regard to the tax implications." Id at 42-43. The Court found it "equally speculative" to conclude that "victory in this suit would result in [plaintiffs] receiving the hospital treatment they desire." Id. at 43, 45-46. Rather than increasing access for indigent
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patients, hospitals could simply discontinue such programs altogether and become profit-funded institutions, thereby exacerbating plaintiffs' injury. Id. at 45-46.
Here, the Hospitality Plaintiffs argue that Defendant has adopted "policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection." (Opp 'n at 16 (emphasis added).) Yet, as in Simon, it is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's "incentives" or instead results from government officials' independent desire to patronize Defendant's businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant's part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant's public profile, there are a number of reasons why patrons may choose to visit Defendant's hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs' alleged injury and Defendant's actions is too tenuous to satisfy Article Ill's causation requirement. Bennett v. Spear, 520 U.S. 154, 167 (1997) (to establish standing, "the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court") (citing Lujan, 504 U.S. at 560-61); Clapper, 568 U.S. at 413 ("[W]e have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.")
Moreover, the Hospitality Plaintiffs cannot establish "that it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Bennett, 520 U.S. at 167 (citation omitted). Plaintiffs seek an injunction preventing Defendant from violating the
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Emoluments Clauses. (SAC i-120.) They argue that such injunction would "stop[] the source of intensified competition [and] provide redress." (Opp'n at 26.) Even if it were determined that the Defendant personally accepting any income from the Trump Organization's business with foreign and domestic governments was a violation of the Emoluments Clauses, it is entirely "speculative," Bennett, 520 U.S. at 167, what effect, if any, an injunction would have on the competition Plaintiffs claim they face. 3
Plaintiffs are likely facing an mcrease m competition in their respective markets for business from all types of customers-government and non-government customers alike-and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. Were Defendant not to personally accept any income from government business, this Court would have no power to lessen the competition inherent in any patron's choice of hotel or restaurant. As explained more fully below, the Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs. Furthermore, notwithstanding an injunction from this Court, Congress could still consent and allow Defendant to continue to accept payments from foreign governments in competition with Plaintiffs.
Thus, while a court order enjoining Defendant may stop his alleged constitutional violations, it would not ultimately redress the Hospitality Plaintiffs' alleged competitive injuries.4
3 For example, even if Defendant honored his pledge to establish a trust and donate all profits from foreign
governments' business to the U.S. Treasury, (Mot. at 5; see also SAC iii! 43--44), foreign government
officials may still patronize Defendant's restaurants and hotels. 4 ROC United contends that it has associational standing to bring this lawsuit because it has alleged that its members have been "injured by the [D]efendant's distortion of competition." (Opp'n at 24-25.) To have associational standing, a plaintiff organization must meet the following requirements: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires
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2. The Hospitality Plaintiffs' Competitive Injuries Do Not Fall Within the Zone of Interests of the Emoluments Clauses
The zone of interests doctrine demonstrates that the Hospitality Plaintiffs are not the right parties to bring a claim under the Emoluments Clauses. Beyond the Article III requirements, "the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Valley Forge Christian Coll. v. Ams. United for Separation ofChurch and State, Inc., 454 U.S. 464, 474 (1982). "One of these is the requirement that the plaintiff establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the zone of interests sought to be protected by the statut[e] [or constitutional guarantee] whose violation forms the legal basis for his complaint." Wyoming v. Oklahoma, 502 U.S. 437, 468-69 (1992) (emphases in original) (citation and quotation marks omitted). While it is true that the "zone of interests" test first appeared in cases brought under the Administrative Procedure Act, 5 U.S.C. § 702, see Data Processing, 397 U.S. at 153, the Supreme Court has "made clear that the same test similarly applies to claims under the Constitution in general[.]" Wyoming, 502 U.S. at 469. In fact, the Supreme Court has "indicated that it is more strictly applied when a plaintiff is proceeding under a constitutional ... provision instead of the generous review provisions of the APA." Id. (emphasis in original) (citation and quotation marks omitted).
Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition. The prohibitions contained in these Clauses arose from the Framers' concern with protecting the new government from corruption and undue influence. Indeed, at the time of the Founding, the new republic was conscious of the
the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm 'n, 432 U.S. 333, 343 (1977). ROC United lacks associational standing because none of its members-neither the restaurants nor restaurant workers-allege an injury in fact caused by Defendant's alleged Emoluments Clause violations that will likely be redressed by a favorable decision.
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European custom of bestowing gifts and money on foreign officials. The Framers, who fought a war to gain their independence from British rule, wanted government officials to avoid future undue influence. As Edmund J. Randolph explained at the Virginia Ratifying Convention,
The [Foreign Emoluments Clause] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state .... This restriction is provided to prevent corruption. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 465-66 (2d ed. 1891); (see also Br. of Former Gov't Ethics Officers as Amici Curiae Supporting Pls., ECF No. 71-1, at 1 (stating that the Clauses "are an important check on corruption, and a beacon for good governance.").) The Framers were not only concerned with foreign corruption, but they were also wary of undue influence from within. To ensure the president's independence from the states and additional financial incentives from the federal government, the Framers included in the Constitution the Domestic Emoluments Clause. That clause was meant to ensure that the president has "no pecuniary inducement to renounce or desert the independence intended for him by the Constitution." The Federalist No. 73 (Alexander Hamilton). Evidently, the Framers were concerned that [T]he legislature, with a discretionary power over the salary and emoluments of the [president], could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. Id. The Clause also helps to ensure presidential impartiality among the states given that"[n]either the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act." Id.
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Given this history, there can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence, while the Domestic Emoluments Clause was meant to ensure presidential independence. Therefore, the Hospitality Plaintiffs' theory that the Clauses protect them from increased competition in the market for government business must be rejected, especially when (1) the Clauses offer no protection from increased competition in the market for non-government business and (2) with Congressional consent, the Constitution allows federal officials to accept foreign gifts and emoluments, regardless of its effect on competition. With Congress's consent, the Hospitality Plaintiffs could still face increased competition in the market for foreign government business but would have no cognizable claim to redress in court. There is simply no basis to conclude that the Hospitality Plaintiffs' alleged competitive injury falls within the zone of interests that the Emoluments Clauses sought to protect.
The Hospitality Plaintiffs therefore lack Article III standing. B. CREW Fails to Adequately Allege an Injury In Fact
Defendant contends that Plaintiff CREW' s claims should be dismissed because it has failed to adequately allege an injury in fact and thus also lacks standing to sue. (Mot. at 8.) An organization like CREW can have standing in one of two ways. As noted, an organization may have associational standing to sue on behalf of its members if some particular member of the organization would have had standing to bring the suit individually. N. Y Civil Liberties Union v. N. YC. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012). Alternatively, an organization "may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Warth v. Seldin, 422 U.S. 490, 511 (1975). "Under this theory of 'organizational' standing, the organization is just another person-albeit a
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legal person-seeking to vindicate a right." N. Y Civil Liberties Union, 684 F.3d at 294. In either case, "the organization must 'meet the same standing test that applies to individuals by showing [an] actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision."' Irish Lesbian & Gay Org. v. Guiliani, 143 F.3d 638, 649 (2d Cir. 1998) (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). In other words, "[a]n organization's abstract concern with a subject that could be affected by an adjudication does not substitute for the concrete injury required by Art. III." Simon, 426 U.S. at 40.
CREW does not allege that it has any members whose interests it seeks to represent here, nor does it otherwise purport to have associational standing. Rather, it asserts it has standing to bring this action because it suffers an injury in its own right, namely a "diversion[] of CREW's communications, legal, and research resources ... and [the] impairment of its programmatic functions." (Opp'n at 27.) CREW claims that by accepting payments to his businesses that are "rarely public," Defendant has deprived it of information concerning the financial support he receives from various governmental sources, "necessitating time consuming, more expensive, and less effective research to maintain its work." (Id.) CREW also asserts that it has had to devote significant resources to identify and counteract Defendant's alleged violations of the Emoluments Clauses, including through the use of "every member of CREW's research team on a near-daily basis" and "the hiring of two additional senior attorneys," as well as its efforts to explain the alleged violations to stakeholders, including the press, and assist and counsel others in counteracting Defendant's alleged violations. (Id. at 28.) CREW claims that these expenditures have all come "at the detriment of CREW's efforts to perform mission-critical work that it would otherwise perform." (Id.)
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Defendant argues that CREW lacks standing because it fails to allege sufficient injury in fact resulting from Defendant's alleged violations of the Emoluments Clauses. (Mot. at 8.) In particular, Defendant claims that CREW's voluntary diversion of resources, and the type of injury it claims to have suffered as a result, is "self-inflicted" and too abstract to confer standing. (Id. at 8-9.)
CREW's organizational standing argument relies principally on the Supreme Court's decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), and its progeny. In Havens, Housing Opportunities Made Equal ("HOME"), a nonprofit corporation, brought suit alleging that the defendants tried to steer members of racial and ethnic groups to buildings occupied primarily by members of the same groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups in violation of the Fair Housing Act of 1968. Id. at 366-67 & n.1. The organization's mission was to increase equal opportunity in housing through, among other ways, operating a housing counseling service and investigating and referring complaints concerning housing discrimination. HOME argued that it had standing because these activities were frustrated by the defendants' conduct. Id. at 368-69. The Court held that HOME would suffer an injury in fact if the defendants' racial steering practices "perceptibly impaired" its ability to provide counseling and referring services to its members: "[s]uch concrete and demonstrable injury to the organization's activities-with the consequent drain on the organization's resources-constitutes far more than simply a setback to the organization's abstract social interests[.]" Id. at 379.
Following Havens, the Second Circuit has held that an organization has standing where the defendant's conduct or policy interferes with or burdens an organization's ability to carry out its usual activities. See, e.g., Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster
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Bay, 868 F.3d 104, 110 (2d Cir. 2017) ("[I]f the Ordinance achieves one of its principal objectives-disbursement of day laborers-[the organization] will inevitably face increased difficulty in meeting with and organizing those laborers."); NY Civil Liberties Union, 684 F.3d at 295 (the organization's ability to represent its clients in administrative hearings was "impeded" by the defendant's policy barring public access to such hearings). These decisions found organizational standing under Havens appropriate where there was a clear, articulable nexus between the challenged conduct or policy and its effects on the organization's ability to carry out specific functions within its purview.
Other Second Circuit decisions have extended Havens beyond the circumstance where an organization's activities are impaired per se. Those cases establish that an organization has standing where it is forced to expend resources to prevent some adverse or harmful consequence on a well-defined and particularized class of individuals. See, e.g., Centro, 868 F.3d at 110 (a local ordinance regulating the ability of day laborers to solicit employment will "force" the organization to expend greater resources since "if the laborers are dispersed, it will be more costly to reach them"); Olsen v. Stark Homes, Inc., 759 F.3d 140, 158 (2d Cir. 2014) (the plaintiff, a nonprofit corporation devoted to fair-housing advocacy and counseling, expended resources to investigate its clients' housing discrimination claims and advocate on their behalf); Mental Disability Law Clinic, Touro Law Ctr. v. Hogan, 519 F. App'x 714, 716-17 (2d Cir. 2013) (the plaintiff organization expended resources to challenge the state mental health agency's policy of asserting counterclaims for outstanding treatment charges against patients who sued the agency and thereby discouraged patients from bringing such suits). Though the plaintiff organizations in these cases each pressed somewhat different claims, the common thread is clear: an organization was compelled to act, "with a consequent drain on [its] resources[,]" Havens, 455 U.S. at 379, to
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remedy and counter the adverse consequences flowing from the defendant's conduct or policy. Put differently, the organization's expenditure of resources is prompted by a desire to prevent or limit some harm to a "legally protected interest." Lujan, 504 U.S. at 560.
Here, CREW fails to allege either that Defendant's actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct. As noted, the plaintiff organizations in the cases cited by CREW were all driven to expend resources they would not have otherwise spent to avert or remedy some harm to a definable class ofprotected interestsfor example, the right of individuals to pursue housing free from discrimination, or of day laborers to solicit employment-caused by the defendant's actions or policies. CREW, by contrast, may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational resources. 5 See New York v. US. Army Corps of Eng'rs, 896 F. Supp. 2d 180, 195 (E.D.N.Y. 2012) (rejecting argument that organization was injured by having to divert resources where "no one's concrete interests [were] invaded, [and thus] there [was] no initial injury to counter"). CREW has therefore failed to allege that it has been "perceptibly impaired" by Defendant's actions. Havens, 455 U.S. at 379. Divorced from any concrete and legally cognizable impact caused by Defendant's conduct, CREW' s allegations of injury amount to no more than an "abstract concern with a subject that could be affected by an adjudication."
5 Although CREW's co-plaintiffs allege personal harm in the form of increased competition, as explained above, those injuries are not legally cognizable since they are neither fairly traceable to Defendant's conduct, nor are they capable of being redressed by a favorable decision on the merits. Moreover, as explained above, the harm they allege falls outside the Emoluments Clauses' zone of interests since increased competition is not an interest that those Clauses were designed to protect. See Part III.A.2.
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Simon, 426 U.S. at 40. As the Supreme Court has made clear, "a mere 'interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient" to confer standing on an organization. Sierra Club v. Morton, 405 U.S. 727, 739 (1972).
To be sure, CREW alleges that the time, money, and attention it has diverted to this litigation from other projects have placed a significant drain on its limited resources. But such an allegation, by itself, is insufficient to establish an injury in fact. CREW's decision to investigate and challenge Defendant's actions under the Domestic and Foreign Emoluments Clauses at the expense of its other initiatives reflects a choice about where and how to allocate its resourcesone that almost all organizations with finite resources have to make. 6 (See SAC~ 175 ("[I]t is essential that CREW prioritize Defendant's violations of the Emoluments Clauses and conflicts of interest over those of lower level officials") (emphasis added).) If CREW could satisfy the standing requirement on this basis alone, it is difficult to see how any organization that claims it has directed resources to one project rather than another would not automatically have standing to sue. Under CREW's unbounded definition of standing, for example, a news organization could sue the President by alleging that one or more of his statements forced it to divert resources away from a different story it might have pursued. Surely something more is required to satisfy Article III standing, particularly where, as here, the plaintiff organization purports to be acting on behalf of the public as a whole. (See id. ~ 154.)
6 Similarly unavailing are CREW's allegations that it has had to expend resources responding to press inquiries. Again, those allegations concerning where and how CREW allocates its resources are insufficient to constitute a legally cognizable injury in fact insofar as they are entirely self-inflicted and not borne out of CREW's need to remedy any particular adverse consequence or harmful effect of Defendant's conduct.
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Moreover, CREW's entire reason for being is to investigate and combat corruption and reduce the influence of money in politics through, among other things, education, advocacy, and
litigation. (Id. iii! 21-22.) CREW is thus not wasting resources by educating the public and issuing
statements concerning the effects of Defendant's alleged constitutional violations or even by filing suit; this is exactly how an organization like CREW spends its resources in the ordinary course. It therefore stands to reason that spending resources to investigate and challenge Defendant's alleged violations of the Domestic and Foreign Emoluments Clauses does not itself impose on CREW a concrete or particularized injury. See Doe v. Vill. of Mamaroneck, 462 F. Supp. 2d 520, 542 (S.D.N.Y. 2006); Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 95 (E.D.N.Y. 2005).
The Second Circuit's decision in Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993), which CREW relies on, (Opp'n at 28-29), does not suggest a contrary result. In Ragin, the plaintiff organization brought suit under the Fair Housing Act challenging the defendant's racially discriminatory advertising practices. 6 F.3d at 901. The court found that the organization had standing because it "was forced" to spend time investigating and remedying the advertisements, including through filing an administrative complaint and a lawsuit in federal court, which prevented it from devoting more time and energy to its "regular tasks" of providing counseling and referral services. Id. at 905. In addition, the court noted, "[t]hat some of the [organization's] time was spent exclusively on litigating this action [did] not deprive [it] of standing." Id. (emphasis added). Here, CREW alleges that it was injured by having to divert resources to investigate and counteract Defendant's constitutional violations. But nearly all of the resources it expended were either in anticipation or direct furtherance of this litigation. Ragin is thus distinguishable.
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Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011), is similarly distinguishable. There, the plaintiff organization brought suit under 42 U.S.C. § 1983 and the First and Fourteenth Amendments challenging an administrative rule pursuant to which taxi drivers' licenses were automatically suspended upon arrest for certain enumerated criminal charges. 644 F.3d at 149. The court recognized a circuit split on the issue of whether "litigation expenses alone [can] constitute damage sufficient to support standing" but reaffirmed Ragin as "good law" and observed that contrary decisions were "largely concerned with the capacity of organizations to 'manufacture' standing by bringing a suit." Id. (citations omitted). One such case, for example, involved a claim by an organization that it "suffered palpable injury when it was forced to divert resources to investigat[e] ... classified advertisements placed in the defendant newspapers ... for evidence of discrimination." Id. (quoting Fair Haus. Council ofSuburban Phila. v. Montgomery Newspapers, 141 F.3d 71, 78 (3d Cir. 1998)). In Nnebe, the court noted that the plaintiff organization was not "trolling for grounds to litigate" but rather "allocated resources to assist drivers only when another party-the City-ha[d] initiated proceedings against one of its members." 644 F.3d at 157-58.
Unlike the plaintiff organization in Nnebe, CREW did not expend resources in response to an "unbidden injury." Centro, 868 F.3d at 122 (Jacobs, J., dissenting). Rather, it sought out and voluntarily undertook efforts to investigate, research, and ultimately bring suit over Defendant's allegedly unlawful conduct, raising the prospect of manufactured standing, about which courts are justifiably concerned. See Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 107 (1998) ("Obviously, ... a plaintiff cannot achieve standing to litigate a substantive issue for the cost of bringing suit."); Spann, 899 F.2d at 27 ("An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit. Were the rule
24

Case 1:17-cv-00458-GBD Document 103 Filed 12/21/17 Page 25 of 29
otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation.") (Ginsburg, J.).
Since Plaintiff CREW has failed to adequately plead a cognizable injury in fact, it lacks standing to sue under Article III. IV. PRUDENTIAL CONSIDERATIONS
In addition to the other grounds upon which he seeks dismissal, Defendant argues that Plaintiffs' claims under the Foreign Emoluments Clause should be dismissed for certain prudential reasons. First, Defendant argues that Plaintiffs' claims are better left resolved through the "political process," rather than the courts, because Congress is "far better equipped" to address whether Defendant's particular activities violate the Foreign Emoluments Clause. (Opp'n at 50.) Defendant points out that Congress has more tools at its disposal, including the ability to legislate and consent to Foreign Emoluments Clause violations. (Id.)
Defendant seems to argue, without explicitly stating so, that the "political question" doctrine bars Plaintiffs' claims. The doctrine would suggest that Plaintiffs' suit presents a political issue that should be resolved between Congress and the President, without any preemptive interference from the Judiciary.
Plaintiffs' Foreign Emoluments Clause claims do implicate political question concerns. The political question doctrine has its roots in the separation of powers and is ultimately a doctrine of justiciability. It bars courts from deciding cases that are inappropriate for judicial resolution based on a lack of judicial authority or competence, or other prudential considerations. As originally articulated by the Supreme Court in Baker v. Carr, a case may be dismissed on the basis of the political question doctrine if there exists: "[l] a textually demonstrable constitutional commitment of the issue [at hand] to a coordinate political department; [2] a lack of judicially
25

Case 1:17-cv-00458-GBD Document 103 Filed 12/21/17 Page 26 of 29
discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question." 369 U.S. 186, 217 (1962).
Each of these factors may serve as an independent ground for dismissal. See Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004). The first factor addresses a court's legal authority to resolve the particular issue presented, the second and third focus on the Judiciary's competence to do so, and the final three concern prudential considerations that may counsel against a court's resolution of the issue. The Baker factors are generally viewed as being listed in descending order of importance. Vieth, 541 U.S. at 278. In fact, cases applying Baker have placed a disproportionate emphasis on the first two factors. See Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir. 2005) (collecting cases).
Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can continue to receive income from his business with foreign governments without the consent of Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue committed exclusively to Congress. As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant's conduct unlawfully infringes on that power. If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant's conduct. As such, this case presents a non-justiciable political question.
26

Case 1:17-cv-00458-GBD Document 103 Filed 12/21/17 Page 27 of 29
Defendant also suggests that Plaintiffs' case should be dismissed because Congress has yet to take any action with respect to Defendant's alleged violations of the Foreign Emoluments Clause. Defendant notes that if Congress wanted to do something about Defendant's conduct, it could. (Opp'n at 50.) Congress could, for example, enact legislation codifying its views by statute or expand the Constitution's conflict-of-interest protections. (Id.) But, because Congress has yet to take any action with respect to Defendant's alleged violations, Defendant contends that Plaintiffs' Foreign Emoluments Clause claims are premature. (See id.)
Plaintiffs' Foreign Emoluments Clause claims are indeed not ripe for judicial review. Ripeness is a different justiciability doctrine designed to prevent courts from prematurely adjudicating cases. See Abbot Labs. v. Gardner, 387 U.S. 136, 148--49 (1976). In Goldwater v. Carter, 444 U.S. 996 (1979), Justice Powell articulated a test to be used in cases involving a confrontation between the legislative and executive branches to determine whether the issue presented was ripe for review, which is particularly instructive here. In that case, members of Congress brought suit against President Carter after he announced his intention to unilaterally terminate a mutual defense treaty between the United States and Taiwan. Goldwater v. Carter, 617 F.2d 697, 700-01 (D.C. Cir. 1979), vacated, 444 U.S. 996 (1979). The plaintiffs there claimed that such action, without ratification from the Senate, infringed upon Congress's treaty power. Id. The D.C. Circuit reversed the lower court's ruling and held that the President did not exceed his constitutional authority in terminating the treaty. Id. at 709.
In remanding the case with instructions to dismiss the complaint, Justice Powell stated that "a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority." Goldwater, 444 U.S. at 996. He noted further that "[t]he Judicial Branch should not decide issues affecting the allocation of
27

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power between the President and Congress until the political branches reach a constitutional impasse.11 Id. In the Goldwater case, Justice Powell explained that nu such impasse had been reached because Congress had yet to take any action either denouncing or approving the President's actions. 7 Id. at 998.
Here, Plaintiffs' suit implicates a similar concern regarding a conflict between two coequal branches of government that has yet to mature. As indicated earlier, the Foreign Emoluments Clause makes clear that Congress, and Congress alone, has the authority to consent to violations ofthat clause. Plaintiffs' principal allegation is that Defendant has completely ignored this balance
of power by continuing to accept emoluments without Congressional approval. (SAC iii! 39--42.)
As such, this case involves a conflict between Congress and the President in which this Court should not interfere unless and until Congress has asserted its authority and taken some sort of action with respect to Defendant's alleged constitutional violations of its consent power.8
At this stage, it would be "both premature and presumptuous for [a court] to render a decision on the issue of [whether Congress's consent] is required at this time or in the near future when ... Congress itself has provided no indication whether it deems such [consent] either necessary, on the one hand, or imprudent, on the other." Dellums v. Bush, 752 F. Supp. 1141, 1149-50 (D.D.C. 1990). If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, "it is not [this Court's] task to do so." Goldwater, 444 U.S. at 998. This Court will not tell Congress how it
7 Subsequent cases have followed Justice Powell's reasoning in Goldwater in dismissing a case on ripeness grounds. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985) (Ginsburg, J., concurring); Dellums v. Bush, 752 F. Supp. 1141, 1149-51(D.D.C.1990); Lowry v. Reagan, 676 F. Supp. 333, 339 (D.D.C. 1987). 8 Congress is not a potted plant. It is a co-equal branch of the federal government with the power to act as a body in response to Defendant's alleged Foreign Emoluments Clause violations, if it chooses to do so.
28

Case 1:17-cv-00458-GBD Document 103 Filed 12/21/17 Page 29 of 29

should or should not assert its power in responding to Defendant's alleged violations ofthe Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs' Foreign Emoluments Clause claims are not ripe for adjudication.
V. CONCLUSION Defendant's motion to dismiss is GRANTED. Accordingly, Plaintiffs' claims and this case
are DISMISSED.

Dated: New York, New York December 21, 2017

SO ORDERED.

29

 
 18-0474-cv United States Court of Appeals for the Second Circuit
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF, ERIC GOODE,
Plaintiffs-Appellants,
– v. –
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant-Appellee.
–––––––––––––––––––––––––––––– ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
BRIEF FOR AMICI CURIAE SCHOLARS OF ADMINISTRATIVE LAW, CONSTITUTIONAL LAW AND FEDERAL JURISDICTION IN SUPPORT OF APPELLANTS
AND URGING REVERSAL
ANDREA LIKWORNIK WEISS LEVI LUBARSKY FEIGENBAUM & WEISS LLP Attorneys for Amici Curiae Scholars of
Administrative Law, Constitutional Law and Federal Jurisdiction 655 Third Avenue, 27th Floor New York, New York 10017 (212) 308-6100

TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .................................................................................... ii INTEREST OF AMICI...............................................................................................1 SUMMARY OF THE ARGUMENT ........................................................................2 ARGUMENT .............................................................................................................6 I. PLAINTIFFS HAVE ESTABLISHED
CONSTITUTIONAL STANDING .................................................................6 A. Plaintiffs Have Suffered an Injury in Fact ............................................8 B. Plaintiffs’ Injuries Are Fairly Traceable to Defendant’s Conduct......14 C. Plaintiffs’ Injuries Are Redressable by Court Order...........................16 II. PLAINTIFFS’ CLAIMS SATISFY THE ZONE-OF-INTERESTS TEST .....................................................................18 III. THE POLITICAL QUESTION DOCTRINE DOES NOT PRECLUDE REVIEW .............................................................23 IV. PLAINTIFFS’ CLAIMS ARE RIPE FOR ADJUDICATION .....................26 CONCLUSION ........................................................................................................30 CERTIFICATE OF COMPLIANCE.......................................................................30 CERTIFICATE OF FILING AND SERVICE ........................................................30 ADDENDUM ..........................................................................................................33

TABLE OF AUTHORITIES

Cases

Page

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ................................................................................................5

Bennett v. Spear, 520 U.S. 154 (1997) ..............................................................................................18

Bond v. United States, 564 U.S. 211 (2011) ................................................................................... 4, 22, 23

Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493 (D.C. Cir. 1996) ................................................................................9

Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89 (2d Cir. 2007) (Leval, J., concurring)...............................................27

Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827)....................................................................... 5, 25

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) ................................................................. 2, 12 n.6, 13, 18, 19

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)......................................................................... 6, 24

Col. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ................................................................................................6

Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009), aff’d by an equally divided Court in part and rev’d on other grounds, 564 U.S. 410 (2011)....................................24

Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299 (1852) ......................................................................... 5, 25

ii

Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730 (5th Cir. 2016).................................................................................13
Ctr. for Reprod. Law v. Bush, 304 F.3d 183 (2d Cir. 2002)....................................................................................8
Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009)......................................................................................7
DEK Energy Co. v. FERC, 248 F.3d 1192 (D.C. Cir. 2001) ............................................................................10
Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) .................................................................. 28, 29
Dep’t of Commerce v. Montana, 503 U.S. 442 (1992) ..............................................................................................23
Ehrenfeld v. Mahfouz, 489 F.3d 542 (2d Cir. 2007)..................................................................................26
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) ........................................................................................ 22-23
Goldwater v. Carter, 444 U.S. 996 (1979) ....................................................................................... 28, 29
Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34 (2d Cir. 1985)....................................................................................29
In re U.S. Catholic Conf., 885 F.2d 1020 (2d Cir. 1989).......................................................................... 2-3, 8
Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 724 F.3d 206 (D.C. Cir. 2013) ..............................................................................14
Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60 (1993) ................................................................................................25
iii

La. Energy & Power Auth. v. FERC, 141 F.3d 364 (D.C. Cir. 1998) ................................................................................9
Larson v. Valente, 456 U.S. 228 (1982) ..............................................................................................17
Lawrence + Mem’l Hosp. v. Burwell, 812 F.3d 257 (2d Cir. 2016)..................................................................................18
Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 705 (D.C. Cir. 1994) ........................................................................16
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................................... 6, 26, 29
Massachusetts v. EPA, 549 U.S. 497 (2007) ..............................................................................................17
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060 (D.C. Cir. 1998) .................................................................. 4, 18-19
N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) ................................................................................................23
Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479 (1998) ...................................................................................... passim
Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682 (2d Cir. 2013)..................................................................... 26, 27, 28
New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002) ..............................................................................14
Nixon v. United States, 506 U.S. 224 (1993) ..............................................................................................24
Nutritional Health Alliance v. Shalala, 144 F.3d 220 (2d Cir. 1998)..................................................................................26
iv

Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) ................................................................................7
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ..............................................................................................23
Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1 (2009) ..................................................................................................25
Poole v. Lessee of Fleeger, 36 U.S. (11 Pet.) 185 (1837) ............................................................................ 5, 26
Royal & Sun Alliance Ins. Co. of Can. v. Century Int’l Arms, Inc., 466 F.3d 88 (2d Cir. 2006)......................................................................................6
Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994)........................................................................................8
Sherley v. Sebelius, 610 F.3d 69 (D.C. Cir. 2010) ....................................................................... 4, 8, 14
Simmonds v. Immig. & Naturalization Serv., 326 F.3d 351 (2d Cir. 2003)..................................................................................26
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ..........................................................................................28
U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978) ..............................................................................................25
United States v. Carroll, 667 F.3d 742 (6th Cir. 2012).................................................................................16
United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016)...............................................................................22
United Transp. Union v. ICC, 891 F.2d 908 (D.C. Cir. 1989) ......................................................................... 3, 14
v

Warth v. Seldin, 422 U.S. 490 (1975) ................................................................................................7
Zivotofsky v. Clinton, 566 U.S. 189 (2012) ......................................................................................... 5, 24
Statutes & Rules Federal Credit Union Act, 12 U.S.C. §§ 1751-1795k ...............................................9 Federal Credit Union Act, § 109 (12 U.S.C. § 1759) ..............................................19 Fed. R. App. P. 29(a) .......................................................................................... 1 n.2 Local Rule of the United States Court of Appeals for the
Second Circuit 29.1 .......................................................................................... 1 n.1 U.S. Const. art. I, § 10, cl. 2................................................................................ 5, 25 U.S. Const. art. I, § 10, cl. 3................................................................................ 5, 25 U.S. Const. art. I, § 9, cl. 8 (Foreign Emoluments Clause) ............................. passim U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause) ......................... passim
Other Authorities 3 The Debates in the Several State Conventions on the Adoption of the
Federal Constitution (Jonathan Elliot ed., 1888)..................................................19 AAA, AAA Four Diamond Hotels (Jan. 31, 2018),
perma.cc/U5EH-A8W9 .................................................................................. 12 n.5 Adrian Vermeule, The Constitutional Law of Official Compensation,
102 Colum. L. Rev. 501 (2002) ............................................................................21
vi

Andrei Shleifer & Robert W. Vishny, Corruption, 108 Q. J. Econ. 599 (1993) .............................................................................. 4, 20
Donald Trump’s New York Times Interview: Full Transcript, N.Y. Times (Nov. 23, 2016), perma.cc/YP35-MBP8...........................................15
Google Maps, bit.ly/2F87ABh (last visited Apr. 22, 2018) ............................. 13 n.7
Google Maps, bit.ly/2snWEK3 (last visited Apr. 22, 2018) ............................ 11 n.4
Morgan, Lewis & Bockius LP, White Paper: Conflicts of Interest and the President 2-3 (Jan. 11, 2017), perma.cc/EX6G-4MUX .......................................27
Pirkei Avot 1:14 (Rabbi Hillel the Elder), in Ethics of the Sages: An Interfaith Commentary on Pirkei Avot 39 (Ronald W. Pies, trans. 2000) ..............................6
Robert Delahunty, Compensation, in The Heritage Guide to the Constitution 251 (2d ed., David F. Forte & Matthew Spalding eds., 2014)..............................21
Ryan Sutton, Jean-Georges Is No Longer a Three-Michelin-Starred Restaurant, Eater N.Y. (Oct. 30, 2017), perma.cc/576W-LG4V .................. 13 n.8
Ryan Sutton, Midtown’s Priciest Power Restaurants Are Getting Even Pricier, Eater N.Y. (Apr. 13, 2016), perma.cc/W8CB-GU3A ............. 13 n.8
Ryan Sutton, New York City’s Michelin Stars Announced for 2018, Eater N.Y. (Oct. 30, 2017), perma.cc/JCT5-ZAYW ..................................... 13 n.8
Stephanie Kanowitz, Hotels Step Up Their Game To Attract Embassy Business, Wash. Diplomat (Mar. 31, 2016), perma.cc/J976-QF89.......11
The Federalist Papers (Jim Miller ed., Dover Publications 2014) (1788) .......................................... 19-20
Top Hotels in New York City: Readers’ Choice Awards 2018, Condé Nast Traveler (Oct. 17, 2017), bit.ly/2yvPPfb ..........................................12
Trump Int’l Hotel & Tower N.Y., perma.cc/5YZA-96SD (last visited Apr. 22, 2018) ....................................... 13 n.7
vii

Trump Tower N.Y., perma.cc/RK37-JXFF (last visited Apr. 22, 2018) ........................................ 13 n.7
Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341 (2009) ..............................................................................21
viii

INTEREST OF AMICI
Amici are scholars of administrative law, constitutional law, and federal
jurisdiction who teach these and related subjects to students at law schools across the country.1 They take a professional interest in the proper construction of
constitutional and prudential limits on justiciability in federal courts. They bring a
perspective informed by more than 440 combined years of teaching, research, and
writing focused on questions related to those posed by this case. A list of amici
appears in an Addendum.
Amici file this brief urging reversal because they are concerned that the
district court’s decision dismissing the plaintiffs’ claims misconstrues Supreme
Court and Second Circuit precedent regarding competitor standing, the zone-of-
interests test, the political question doctrine, and ripeness, and unduly curtails
access to the federal courts for plaintiffs seeking to enforce the Constitution’s guarantees.2 While the parties’ submissions naturally focus on the immediate
implications of this Court’s decision for the claims asserted here, amici seek to
1 Pursuant to Rule 29.1 of this Court’s Local Rules, amici certify that (1) this brief was authored solely by amici and their counsel, and not by counsel for any party, in whole or in part; (2) no party and no counsel for any party contributed money intended to fund preparing or submitting the brief; and (3) apart from amici and their counsel, no other person contributed money intended to fund preparing or submitting the brief. 2 The parties have consented to the filing of this amicus brief. Accordingly, this brief may be filed without leave of court, pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

shed light on the ramifications of the Court’s decision for other potentially affected litigants. With this brief, they seek to alert the Court to relevant legal arguments and precedents that bear on threshold questions of justiciability.
SUMMARY OF THE ARGUMENT Donald J. Trump is not your typical business competitor. Unlike every other market participant, President Trump enjoys all the advantages of holding the most powerful office in the world. But notwithstanding the atypical identity of the competitor in question, this case is a typical competitor standing case. And under well-settled federal law doctrines, plaintiffs Jill Phaneuf, Eric Goode, and the members of ROC United have asserted justiciable competitor standing claims. In a typical competitor standing case, a plaintiff claims that she has suffered or will soon suffer economic injury because another market participant enjoys an illegal advantage. See, e.g., Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co. (“NCUA”), 522 U.S. 479, 482–87 (1998) (claim by commercial banks that credit union has enrolled certain customers illegally); Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 390–94 (1987) (claim by securities brokers, underwriters, and investment bankers that national banks are illegally offering certain brokerage services at branch offices). To proceed on such a claim, the plaintiff must show that she “personally competes in the same arena” as the party who enjoys the “assertedly illegal benefit.” In re U.S. Catholic Conf., 885 F.2d 1020, 1029 (2d Cir.
2

1989). Once a plaintiff satisfies that requirement, she can rely on “basic economic logic” to establish the other elements of Article III standing: causation and redressability. See United Transp. Union v. ICC, 891 F.2d 908, 912 n.7 (D.C. Cir. 1989).
Phaneuf, Goode, and the members of ROC United satisfy all of the competitor standing criteria. They assert that the defendant’s hotels and restaurants enjoy an illegal advantage in the competition for diplomatic clients and other governmental customers—namely, the fact that the hotels and restaurants are owned by President Trump. That advantage is illegal, the plaintiffs say, because the Foreign and Domestic Emoluments Clauses prohibit the President from engaging in commercial transactions with foreign, federal, and state governments. And it is an advantage, according to the plaintiffs, because diplomatic and other governmental customers are attracted by the opportunity to patronize the President’s hotels and restaurants—and, potentially, to curry favor with the leader of the free world. The plaintiffs compete in the same arena—and indeed, often within the same several-block radius—as enterprises owned by the defendant that enjoy this assertedly illegal advantage. Basic economic logic, bolstered by affidavits and expert reports, supports the plaintiffs’ argument that this illegal competition causes them an “actual, here-and-now injury” that declaratory and
3

injunctive relief would redress. See Sherley v. Sebelius, 610 F.3d 69, 74 (D.C. Cir. 2010).
The plaintiffs’ claims also fall within the “zone of interests” that the Emoluments Clauses secure. The Emoluments Clauses safeguard against corruption, and one of the many costs of corruption is that it places enterprises without government connections at a competitive disadvantage vis-à-vis firms with close ties to political leaders. See Andrei Shleifer & Robert W. Vishny, Corruption, 108 Q. J. Econ. 599, 616 (1993). The plaintiffs are economic actors who suffer pecuniary harm as a result of these market distortions, and they are thus among “those who in practice can be expected to police the interests” that the Emoluments Clauses protect. See Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1075 (D.C. Cir. 1998). Moreover, the Emoluments Clauses serve structural purposes: their restrictions on the President’s receipt of emoluments from foreign, federal, and state governments undergird both the separation of powers and our system of federalism. Plaintiffs who suffer cognizable harms caused by violations of the Constitution’s structural provisions may enforce those provisions in court. See Bond v. United States, 564 U.S. 211, 223 (2011).
The political question doctrine does not pose an obstacle to plaintiffs’ claims. That doctrine directs courts to step aside “when there is a textually demonstrable constitutional commitment of the issue to a coordinate political
4

department.” Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). Neither the Foreign nor the Domestic Emoluments Clause manifests such a commitment. The Foreign Emoluments Clause provides that federal officeholders cannot accept emoluments from foreign governments “without the Consent of Congress.” U.S. Const. art. I, § 9, cl. 8. That linguistic formulation is familiar from other constitutional provisions. See U.S. Const. art. I, § 10, cl. 2 (Import-Export Clause); id. art. I, § 10, cl. 3 (Tonnage and Compact Clauses). The Supreme Court has long considered claims under these clauses to be justiciable. See Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 437 (1827) (Import-Export Clause); Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299, 313–14 (1852) (Tonnage Clause); Poole v. Lessee of Fleeger, 36 U.S. (11 Pet.) 185, 209–10 (1837) (Compact Clause). To hold that the phrase “without the consent of Congress” in the Foreign Emoluments Clause amounts to a “textually demonstrable constitutional commitment of the issue to a coordinate political department” would be to throw away nearly two centuries of jurisprudence.
Finally, the plaintiffs’ claims are ripe for adjudication. The “basic rationale” of the ripeness doctrine “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). But there is nothing “abstract” about the disagreement between the plaintiffs and the defendant here. The plaintiffs maintain
5

that the Emoluments Clauses prohibit the defendant from competing for government clients; the defendant does so anyway—and on a daily basis. Fifteen months have elapsed since President Trump’s inauguration. To quote an ancient sage, “If not now, when?” Pirkei Avot 1:14 (Rabbi Hillel the Elder), in Ethics of the Sages: An Interfaith Commentary on Pirkei Avot 39 (Ronald W. Pies, trans. 2000).
Both the Supreme Court and this Court have repeatedly recognized their “virtually unflagging obligation” to resolve cases that fall within their jurisdiction. Col. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); Royal & Sun Alliance Ins. Co. of Can. v. Century Int’l Arms, Inc., 466 F.3d 88, 92 (2d Cir. 2006). Federal courts “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). Here, the plaintiffs have met all the relevant constitutional and prudential criteria for judicial review. They deserve to have their case resolved on the merits.
ARGUMENT I. PLAINTIFFS HAVE ESTABLISHED CONSTITUTIONAL STANDING
All plaintiffs in federal court must meet the familiar requirements of injury in fact, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). At the motion-to-dismiss stage, plaintiffs can pass this test on
6

the basis of their pleadings. See Warth v. Seldin, 422 U.S. 490, 501 (1975) (“For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint.”). Here, the plaintiffs have gone above and beyond the minimum pleading requirements and supplemented their allegations with affidavits and expert reports substantiating their economic injuries. As explained below, the plaintiffs’ submissions leave little doubt that they compete with the defendant’s enterprises for diplomatic and other governmental customers.
The reviewing court also must assume for purposes of its standing analysis that the plaintiffs’ claims are valid on the merits. See Warth, 422 U.S. at 500; see also Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007) (“[W]hen considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim.”). This Court has warned district courts against “erroneously conflat[ing] the requirement for an injury-infact with the constitutional validity of [the plaintiff]’s claim.” Dean v. Blumenthal, 577 F.3d 60, 66 n.4 (2d Cir. 2009). The only question at the standing stage is whether the plaintiffs have (1) suffered an injury in fact that (2) is traceable to the
7

defendant’s conduct and that (3) is redressable by the court. The plaintiffs satisfy all three requirements.3
A. Plaintiffs Have Suffered an Injury in Fact The competitor standing doctrine offers one “well-established” route by which plaintiffs can satisfy the first constitutional standing requirement of “injury in fact.” See Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994); see also Sherley, 610 F.3d at 72 (“The doctrine of competitor standing addresses the first requirement by recognizing that economic actors suffer an injury in fact when agencies lift regulatory restrictions on their competitors or otherwise allow increased competition against them.” (alteration and internal quotation marks omitted)). To make such a showing, a plaintiff must demonstrate that she “personally competes in the same arena” as the party who has received an assertedly illegal benefit or whose presence in the market is allegedly unlawful. See Ctr. for Reprod. Law v. Bush, 304 F.3d 183, 197 (2d Cir. 2002); In re U.S. Catholic Conf., 885 F.2d at 1029. Phaneuf, Goode, and the members of ROC United all satisfy this requirement because they personally compete against the defendant’s hotels and restaurants for diplomatic and other governmental clients.
3 Amici focus only on the justiciability of claims brought by Phaneuf, Goode, and ROC United, because Citizens for Responsibility and Ethics in Washington is no longer pursuing its appeal.
8

A plaintiff seeking to establish competitor standing need not show that she has lost a specific customer or sale on account of the assertedly illegal competition. See La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998) (“[P]etitioners establish their constitutional standing by showing that the challenged action authorizes allegedly illegal transactions that have the clear and immediate potential to compete with the petitioners’ own sales. They need not wait for specific, allegedly illegal transactions to hurt them competitively.” (emphasis in original; internal quotation marks omitted)); Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1499 (D.C. Cir. 1996) (injury in competitor standing cases “is not lost sales, per se,” but “exposure to competition” that the plaintiff alleges to be illegal). For example, in NCUA, the Supreme Court noted that the plaintiff banks “have suffered an injury in fact” because a regulatory agency’s interpretation of the Federal Credit Union Act “allows persons who might otherwise be their customers” to become customers of a credit union instead. NCUA, 522 U.S. at 488 n.4 (emphasis added). The Court did not demand that the plaintiffs point to a particular customer who switched from a commercial bank to a credit union in response to the regulator’s action; instead it relied on the general principle that “competitors of financial institutions have standing to challenge agency action relaxing statutory restrictions on the activities of those institutions.” Id. at 488. And what is good for competitors of financial institutions is good for competitors of
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hotels and restaurants as well: when the action of a government agency or official allows hotels and restaurants to enter markets from which they otherwise would be barred or confers upon them an assertedly illegal advantage, competitors suffer an injury in fact.
There are, to be sure, circumstances in which the allegedly illegal competition occurs in a market so far removed from the plaintiff’s that the potential for economic injury is too remote to support standing. For example, a sister circuit has held that a natural gas seller in northern California lacks standing to challenge an agency action affecting transactions “several hundreds of miles” away in northern Oregon. DEK Energy Co. v. FERC, 248 F.3d 1192, 1196 (D.C. Cir. 2001). “More is needed to move an injury from ‘conjectural’ to ‘imminent,’” according to the court, than “some vague probability that any gas will actually reach [the plaintiff’s] market and a still lower probability that its arrival will cause [the plaintiff] to lose business or drop its prices.” Id. But Phaneuf, Goode, and the members of ROC United need not rely on “some vague probability” that the defendant will reach their markets. He is already there.
Start with Jill Phaneuf. She has alleged—and her accompanying affidavit further avers—that she “specifically seeks to book embassy functions and political functions involving foreign governments” at the Kimpton Carlyle Hotel Dupont Circle and the Kimpton Glover Park Hotel in Washington, D.C. JA-72 ¶ 221; see
10

also JA-269 ¶ 1 (“I aim to book embassy functions, political functions involving foreign governments, and functions that are associated with foreign governments at the Carlyle Hotel and the Glover Park Hotel. My compensation is determined as a percentage of the gross receipts of the events that I book for these hotels.”). Her statements are amply supported. The Carlyle Hotel is within five blocks of more than a dozen embassies,4 while the Glover Park Hotel is across the street from the Embassy of the Russian Federation. JA-273 ¶ 22. Indeed, the diplomatic press in Washington, D.C., has noted efforts by the Carlyle and Glover Park Hotels to cater to embassy clients. See Stephanie Kanowitz, Hotels Step Up Their Game To Attract Embassy Business, Wash. Diplomat (Mar. 31, 2016), perma.cc/J976-QF89. These hotels compete in the same arena as the Trump International Hotel in Washington, D.C., which specifically markets itself to diplomatic customers. See JA-37–41 ¶¶ 60–87.
Eric Goode also owns several hotels and restaurants that compete with the defendant’s. Among other properties, Goode owns the Bowery Hotel on Manhattan’s Lowest East Side, which is about a twenty-minute drive “with traffic” to the Trump International Hotel and Tower New York. JA-295 ¶ 4. The President has contended that his properties do not directly compete with Goode’s hotels because “the Trump-named Hotels are AAA five-diamond hotels, whereas
4 See Google Maps, bit.ly/2snWEK3 (last visited Apr. 22, 2018).
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Goode’s hotels are not.” See Mem. of Law in Supp. of Def.’s Mot. to Dismiss at 17, ECF No. 35 (“Def.’s Mem.”). But no court has ever suggested that constitutional standing hinges upon how the American Automobile Association rates hotels.5 In any case, if for some reason rankings were relevant to the constitutional standing inquiry, the Bowery Hotel is ranked three places above President Trump’s flagship New York hotel on the Condé Nast Traveler Readers’ Choice Awards 2017 list of top hotels in New York City. See Top Hotels in New York City: Readers’ Choice Awards 2018, Condé Nast Traveler (Oct. 17, 2017), bit.ly/2yvPPfb (ranking the Bowery Hotel seventh and the Trump International tenth). Goode’s hotel and the President’s are competing in the same league.
Finally, ROC United satisfies the injury-in-fact requirement based on the competitive harm to its member restaurants and restaurant employees, who directly compete with restaurants owned by or otherwise affiliated with the defendant.6 ROC United’s members include, among others, The Modern in midtown Manhattan. JA-291 ¶ 23, JA-292 ¶ 26. The Modern is located three-and-a-half blocks from Trump Tower, the site of Trump Grill, and ten blocks away from
5 The Bowery Hotel is an AAA Four Diamond Hotel. See AAA, AAA Four Diamond Hotels (Jan. 31, 2018), perma.cc/U5EH-A8W9. 6 Courts have long allowed trade associations to litigate on their members’ behalf when the members can demonstrate competitive injury and the relief they seek is an injunction preventing illegal competition from continuing. See, e.g., NCUA, 552 U.S. at 483; Clarke, 479 U.S. at 392.
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Trump International Hotel, the site of the restaurant Jean-Georges.7 At the motion-
to-dismiss stage, the defendant noted that the Trump Grill is not open for dinner
and that Jean-Georges has three Michelin stars. See Def.’s Mem. at 17. But The
Modern also maintains a significant lunch business, and it now has the same
number of Michelin stars as Jean-Georges.8
The fact that Washington, D.C., and New York City are home to hundreds of
hotels and thousands of restaurants does not undermine the plaintiffs’ competitive
injury claims. So too were there thousands of banks at the time of NCUA, and
thousands of securities brokers at the time of Clarke. In any event, the plaintiffs’
enterprises—like the defendant’s businesses—are among a rarefied group of hotels
and restaurants competing for a limited set of diplomatic and other governmental
clients. Heightened competition from Trump properties is more than sufficient to
establish the plaintiffs’ injury in fact. See Cooper v. Tex. Alcoholic Beverage
Comm’n, 820 F.3d 730, 738 (5th Cir. 2016) (“It is a basic law of economics that
7 See Google Maps, bit.ly/2F87ABh (last visited Apr. 30, 2018). Trump Tower, at 725 Fifth Avenue in New York, is the headquarters of the Trump Organization. See Trump Tower N.Y., perma.cc/RK37-JXFF (last visited Apr. 30, 2018). Trump International Hotel and Tower New York, at 1 Central Park West, is the site of the defendant’s flagship New York hotel. See Trump Int’l Hotel & Tower N.Y., perma.cc/5YZA-96SD (last visited Apr. 30, 2018). 8 See Ryan Sutton, Midtown’s Priciest Power Restaurants Are Getting Even Pricier, Eater N.Y. (Apr. 13, 2016), perma.cc/W8CB-GU3A; Ryan Sutton, JeanGeorges Is No Longer a Three-Michelin-Starred Restaurant, Eater N.Y. (Oct. 30, 2017), perma.cc/576W-LG4V; Ryan Sutton, New York City’s Michelin Stars Announced for 2018, Eater N.Y. (Oct. 30, 2017), perma.cc/JCT5-ZAYW.
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increased competition leads to actual economic injury.”); Sherley, 610 F.3d at 72 (“increased competition almost surely injures a seller in one form or another”). This is especially true where, as here, the competitor enjoys an advantage available to no other market participant: access to the most powerful office in the world.
B. Plaintiffs’ Injuries Are Fairly Traceable to Defendant’s Conduct Once a plaintiff establishes that she personally competes in the same arena as the party that enjoys an allegedly illegal advantage, it is a small step to show that her injury is caused by the challenged conduct. See Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 724 F.3d 206, 212 (D.C. Cir. 2013) (causation requirement is “easily satisfied” where, absent the challenged conduct, plaintiffs “would not be subject to increased competition”). In “‘garden variety competitor standing cases,’” plaintiffs can rely on “a chain of causation ‘firmly rooted in the basic law of economics.’” New World Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002) (quoting United Transp. Union, 891 F.2d at 913). And though President Trump is no “garden variety” defendant, this is—at least as far as causation is concerned—a “garden variety” competitor standing case: the defendant’s assertedly illegal advantage causes the plaintiffs to face increased competition. The district court concluded otherwise, saying that it is “wholly speculative” whether the plaintiffs’ loss of business is “fairly traceable” to the desire of diplomatic and other governmental customers to curry favor with the President or
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“instead results from government officials’ independent desire to patronize Defendant’s businesses.” JA-336. But that conclusion misses the heart of the plaintiffs’ case. The plaintiffs’ argument on the merits is that any transaction between the President and a governmental client—foreign, federal, or state— qualifies as an “Emolument” for purposes of the Foreign and Domestic Emoluments Clauses. See JA-78 ¶ 249, JA-261 ¶ 80. Assuming (as we must at this stage) that the plaintiffs are correct on the merits, then any increased competition from—or loss of business to—the defendant’s enterprises is fairly traceable to the illegality alleged.
Moreover, the district court acknowledged that “[i]t is only natural that interest in [the defendant’s] properties has generally increased since he became President.” JA-336. President Trump has said so himself. See Donald Trump’s New York Times Interview: Full Transcript, N.Y. Times (Nov. 23, 2016), perma.cc/YP35-MBP8 (noting that “because I’m president,” the Trump brand “is certainly a hotter brand than it was before”). That concession confirms the plaintiffs’ causal claim. The plaintiffs contend, the defendant admits, and the district court did not dispute that the plaintiffs face increased competition and that they have lost and will lose business because of the assertedly illegal presence of the President’s hotels and restaurants in the market for diplomatic and other governmental clients. That is all they need to show to satisfy Article III’s causation
15

requirement. See, e.g., Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 705 (D.C. Cir. 1994) (petitioner’s competitive injury is traceable to respondent’s assertedly unlawful action when, but for respondent’s action, petitioner would not face competition from enterprises that enjoy allegedly illegal advantage).
C. Plaintiffs’ Injuries Are Redressable by Court Order Just as the plaintiffs’ injuries are caused by the defendant’s illegal conduct, so too can they be redressed by a court order directed at the defendant. See United States v. Carroll, 667 F.3d 742, 745 (6th Cir. 2012) (causation and redressability elements of constitutional standing “often go hand in hand”). In addition to declaratory relief, the plaintiffs seek a court order enjoining the defendant from violating the Emoluments Clauses in the future. Because the relevant harm is illegal competition, an injunction stopping the defendant from continuing that illegal competition would straightforwardly redress the plaintiffs’ injuries. The district court’s contrary conclusion rested on two grounds. First, it said that “there is no remedy this Court can fashion to level the playing field for the Plaintiffs” with respect to “non-government customers.” JA-337. Second, it observed that “notwithstanding an injunction from this Court, Congress could still consent and allow Defendant to continue to accept payments from foreign governments in competition with Plaintiffs.” Id. Both of those statements are true as far as they go. Neither, however, undermines the plaintiffs’ standing.
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Start with the first. The plaintiffs are not challenging the defendant’s conduct with respect to nongovernmental customers, and thus the fact that the defendant could continue to do business with those customers does not defeat the plaintiffs’ claim that they are disadvantaged in their pursuit of governmental clients. The plaintiffs seek redress for a discrete injury: increased competition for governmental customers on account of the defendant’s assertedly illegal acceptance of emoluments. A court order could remedy that injury, whether or not it would level the playing field between the plaintiffs and the defendant in other respects. See Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (plaintiff “need not show that a favorable decision will relieve his every injury” (emphasis in original)); see also Massachusetts v. EPA, 549 U.S. 497, 526 (2007) (finding standing where injury “would be reduced to some extent if petitioners received the relief they seek”).
As for the possibility of congressional consent, no act of Congress can erase a violation of the Domestic Emoluments Clause. See U.S. Const. art. II, § 1, cl. 7 (“The President shall . . . receive for his Services, a Compensation . . . and he shall not receive within that Period any other Emolument from the United States, or any of them.”). And while Congress can cure what otherwise would be a Foreign Emoluments Clause violation, this same possibility exists any time any plaintiff seeks to enjoin any action of any Executive Branch agency or official on grounds
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that the action exceeds the agency’s or official’s statutory authority. See, e.g., Lawrence + Mem’l Hosp. v. Burwell, 812 F.3d 257 (2d Cir. 2016). Congress always can—at least in theory—pass new legislation that endows the agency with the statutory authority that the plaintiffs say it lacks. But if the possibility of congressional consent were enough to prevent plaintiffs from satisfying the redressability requirement, then virtually all nonconstitutional claims would fail on those grounds. Followed to its logical conclusion, the district court’s rationale would bring about a sea change in the law of standing and would insulate a broad swath of Executive Branch actions from judicial review. II. PLAINTIFFS’ CLAIMS SATISFY THE ZONE-OF-INTERESTS TEST
The plaintiffs also have established that their claims come within the zone of interests that the Emoluments Clauses secure. The prudential zone-of-interests test requires plaintiffs in federal court to show that their grievances “arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee invoked in the suit.” Bennett v. Spear, 520 U.S. 154, 162 (1997). The zone-of-interests test “is not meant to be especially demanding,” see Clarke, 479 U.S. at 399, and the plaintiffs comfortably pass it here.
Significantly, the zone-of-interests analysis focuses “not only on those who [the framers of the provision] intended to benefit,” but also “on those who in practice can be expected to police the interests that the [provision] protects.” Mova
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Pharm. Corp., 140 F.3d at 1075; see also Clarke, 479 U.S. at 399–400 (noting that “there need be no indication” of a “purpose to benefit the would-be plaintiff”). For example, in NCUA, the Court found that § 109 of the Federal Credit Union Act— which limits credit union membership to groups having common occupational, associational, or community ties—was intended “to reinforce the cooperative nature of credit unions” and thus “to promote their safety and soundness.” NCUA, 522 U.S. at 493 n.6. The Court concluded that “even if it cannot be said that Congress had the specific purpose of benefiting commercial banks, one of the interests arguably to be protected by § 109 is an interest in limiting the markets that federal credit unions can serve.” Id. at 492–93 (ellipsis and internal quotation marks omitted). Commercial banks, who “certainly have an interest in limiting the markets that federal credit unions can serve,” therefore satisfied the zone-ofinterests test. Id. at 493.
A similar line of reasoning supports the plaintiffs’ claims here. The Foreign and Domestic Emoluments Clauses, as the district court correctly noted, “arose from the Framers’ concern with protecting the new government from corruption.” JA-338; see 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 465 (Jonathan Elliot ed., 1888) (statement of Edmund Randolph) (Foreign Emoluments Clause “is provided to prevent corruption”); The Federalist Papers 358 (Jim Miller ed., Dover Publications 2014) (1788)
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(Hamilton) (Domestic Emoluments Clause ensures that “[n]either the Union, nor any of its members,” can “corrupt [the President’s] integrity by appealing to his avarice”). One of the many costs of corruption is that it places firms without government connections at a competitive disadvantage vis-à-vis firms that enjoy close ties to the occupants of high offices. That, in turn, produces market distortions. See Shleifer & Vishny, supra, at 616 (noting that corrupt leaders may “maintain monopolies,” “prevent entry,” and “discourage innovation by outsiders,” and that “distortions from corruption can discourage useful investment and growth”). And that is the crux of the plaintiffs’ complaint. The plaintiffs claim that they are harmed when they have to compete in a market skewed by the presence of firms owned by the President of the United States—firms that can attract diplomatic and other governmental customers on the basis of the owner’s political power instead of quality and price. Just as the commercial banks in NCUA had an interest in preventing credit unions from entering new markets, the plaintiffs here have an interest in preventing the President from distorting their markets through illegal competition.
To be sure, as the district court observed, “[n]othing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition.” JA-338. But the plaintiffs are not complaining about competition in general; they are complaining about competition for
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diplomatic and other governmental clients from firms that are owned by and thus inextricably associated with the President. Framed that way, the plaintiffs’ interest in preventing the President from using his position of power to profit from commercial transactions with foreign, federal, and state government counterparties is very much within the zone of interests that the Emoluments Clauses are intended to protect, and the plaintiffs are fully capable of performing the policing function that the zone-of-interests test contemplates.
The Emoluments Clauses also serve structural purposes. The Foreign Emoluments Clause is a separation-of-powers provision in addition to an anticorruption one. It allocates to Congress the power to decide whether and when federal officeholders may receive emoluments from foreign governments. See Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 361 (2009) (Foreign Emoluments Clause reflects Framers’ view that “[i]f foreigners were to attempt to buy influence or access, or use small gifts to shift the sympathies of American agents, they need[] the full consent of Congress”). So too, the Domestic Emoluments Clause protects the separation of powers: it ensures that Congress, through its control over the President’s statutory compensation, is “the sole master” whom the President will serve. See Adrian Vermeule, The Constitutional Law of Official Compensation, 102 Colum. L. Rev. 501, 510 (2002). The prohibition on state-granted emoluments likewise preserves our system of
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federalism, as it “helps to ensure presidential impartiality among particular members or regions of the Union.” Robert Delahunty, Compensation, in The Heritage Guide to the Constitution 251, 251 (2d ed., David F. Forte & Matthew Spalding eds., 2014).
Because the Emoluments Clauses serve structural purposes, individuals whose interests are impaired by the violation of these provisions come within the zone of interests that the clauses protect. “[I]ndividuals, too, are protected by the operations of separation of powers and checks and balances; and they are not disabled from relying on those principles in otherwise justiciable cases and controversies.” Bond, 564 U.S. at 223. Individuals likewise may sue for violations of provisions that safeguard our system of federalism. After all, “federalism protects the liberty of the individual from arbitrary power.” Id. at 222; see also United States v. McIntosh, 833 F.3d 1163, 1174 (9th Cir. 2016) (“[B]oth federalism and separation-of-powers constraints in the Constitution serve to protect individual liberty, and a litigant in a proper case can invoke such constraints ‘when government acts in excess of its lawful powers.’” (quoting Bond, 564 U.S. at 222) (alteration omitted)). And the Supreme Court has not distinguished between individuals and organizations in this regard: nonprofit and for-profit organizations that meet the constitutional standing requirements may sue to vindicate structural guarantees to the same extent as individuals. See Free Enter. Fund v. Pub. Co.
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Accounting Oversight Bd., 561 U.S. 477 (2010); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
In sum, the Supreme Court has defined the relevant “zone of interests” broadly with respect to provisions that protect the horizontal separation of powers (i.e., the separation among the branches) as well as the vertical separation of powers (i.e., federalism). It has said that “[i]f the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.” Bond, 564 U.S. at 223. The plaintiffs satisfy the justiciability requirements of Article III and seek to enforce the Constitution’s structural guarantees. The prudential zone-of-interests test presents no obstacle to judicial review of their claims. III. THE POLITICAL QUESTION DOCTRINE
DOES NOT PRECLUDE REVIEW The plaintiffs’ claims raise “an issue of great importance to the political
branches.” Dep’t of Commerce v. Montana, 503 U.S. 442, 458 (1992). Their allegations implicate the personal financial interests of the President as well as the allocation of authority between the Executive and the Legislature. But those facts alone do not warrant dismissal under the political question doctrine. As this Court has explained, “not every case with political overtones is non-justiciable,” and the Judiciary “can no more usurp executive and legislative prerogatives than it can
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decline to decide matters within its jurisdiction simply because such matters may have political ramifications.” Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 332 (2d Cir. 2009) (citation omitted), aff’d by an equally divided Court in part and rev’d on other grounds, 564 U.S. 410 (2011). The political question doctrine carves out a “narrow exception” to the general rule that “the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’” Zivotofsky, 566 U.S. at 195 (quoting Cohens, 19 U.S. (6 Wheat.) at 404).
This case falls well outside that narrow exception. The Supreme Court has held that “a controversy involves a political question where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department.’” Zivotofsky, 566 U.S. at 195 (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)). The district court concluded that the Foreign Emoluments Clause demonstrates such a commitment: “As the explicit language of the Foreign Emoluments Clause makes clear,” the court said, “this is an issue committed exclusively to Congress.” JA-349. But the explicit language of the clause says nothing of the sort. The Foreign Emoluments Clause clearly prohibits federal officeholders from accepting foreign emoluments unless Congress affirmatively grants an exception. The district court’s interpretation, by contrast, would allow federal officeholders to accept foreign emoluments—without fear of legal consequences—unless Congress affirmatively enacts a prohibition. Rather than
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heeding a textually demonstrable commitment, the district court’s interpretation would turn the clause’s text on its head.
The district court’s conclusion also cannot be squared with Supreme Court precedent. The critical language in the Foreign Emoluments Clause—“without the Consent of Congress”—appears twice more in the Constitution: once in the Import-Export Clause and again in the Tonnage and Compact Clauses. See U.S. Const. art. I, § 10, cl. 2 (“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports . . . .”); id. art. I, § 10, cl. 3 (“No State shall, without the Consent of Congress, lay any Duty of Tonnage . . . [or] enter into any Agreement or Compact with another State . . . .”). The Supreme Court has resolved numerous cases implicating those provisions without ever suggesting that the words “without the Consent of Congress” in those clauses amount to a “textually demonstrable constitutional commitment of the issue to a coordinate political department.” See Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 76-78 (1993) (resolving Import-Export Clause challenge on the merits and collecting Import-Export Clause cases); Brown, 25 U.S. (12 Wheat.) at 437 (same); Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 6–16 (2009) (reaching merits of Tonnage Clause challenge); Cooley, 53 U.S. (12 How.) at 313–14 (same); U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 454–78 (1978) (Compact Clause); Poole, 36 U.S. (11 Pet.) at 209–10 (same). To hold that the phrase
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“without the Consent of Congress” triggers the application of the political question doctrine would be to jettison more than a century of case law construing constitutional provisions with identical text.9 IV. PLAINTIFFS’ CLAIMS ARE RIPE FOR ADJUDICATION
Ripeness, like standing, is “a constitutional prerequisite to exercise of jurisdiction by federal courts.” Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d Cir. 1998). And like standing, it is a prerequisite that the plaintiffs satisfy. A case is “ripe within the constitutional sense” if it “presents a ‘concrete dispute affecting cognizable current concerns of the parties within the meaning of Article III.’” Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir. 2007) (quoting Simmonds v. Immig. & Naturalization Serv., 326 F.3d 351, 357 (2d Cir. 2003)). By contrast, a case is “constitutionally unripe” if the plaintiffs’ injury “is not ‘actual or imminent,’ but instead ‘conjectural or hypothetical.’” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (quoting Lujan, 504 U.S. at 560). For Phaneuf, Goode, and the members of ROC United, who must compete every day against enterprises owned by and affiliated with the President, there is nothing conjectural or hypothetical about the injury they face. Their concerns could not be more current.
9 And even if the political question doctrine were stretched to that extreme, it would not defeat the plaintiffs’ claims under the Domestic Emoluments Clause, which admits of no exception in cases of legislative license.
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One can imagine circumstances in which constitutional ripeness might be relevant to Foreign and Domestic Emoluments Clause claims, but this case does not present such circumstances. For example, if the plaintiffs had filed their complaint before President Trump took office, then their claims likely would have been unripe. At that moment, it would have been “conjectural” and “hypothetical” to suppose that the defendant would retain ownership of his various name-brand properties and would continue to conduct business with governmental clients notwithstanding his pledge to “scrupulously abide by” constitutional limitations on the receipt of emoluments and to “avoid[] even the appearance of a conflict of interest.” See Morgan, Lewis & Bockius LP, White Paper: Conflicts of Interest and the President 2-3 (Jan. 11, 2017), perma.cc/EX6G-4MUX. Yet that moment has long since passed. The constitutional ripeness doctrine “assumes that the relationship between the parties might at some point ripen into an injury sufficiently direct and realized to satisfy the requirements of Article III standing.” Bronx Household of Faith v. Bd. of Educ., 492 F.3d 89, 111 (2d Cir. 2007) (Leval, J., concurring). But if the plaintiffs’ claims are not yet ripe, they never will be.
This Court also has recognized a “prudential ripeness” doctrine, see Nat’l Org. for Marriage, 714 F.3d at 691, but the district court’s decision cannot be sustained on that basis either. Before abstaining from a case on prudential ripeness grounds, a court must conduct a “two-step inquiry,” evaluating “both the fitness of
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the issues for judicial decision and the hardship to the parties of withholding court consideration.” Id. Here, the district court dismissed the plaintiffs’ Foreign Emoluments Clause claims on ripeness grounds without ever considering the hardship to Phaneuf, Goode, and the members of ROC United, who will continue to suffer competitive injury while the court stays its hand. Insofar as the district court’s decision rested on prudential ripeness, the court’s failure to consider one of the two requirements for prudential ripeness would be a fatal flaw. See also Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014) (noting doubt about the “continuing vitality of the prudential ripeness doctrine”).
The two cases cited by the district court in support of its ripeness holding— Goldwater v. Carter, 444 U.S. 996 (1979), and Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990)—cannot bear the weight that the district court has placed on them. Goldwater and Dellums both involved suits by a handful of federal lawmakers who sought to enjoin the President from taking certain foreign policy actions. In Goldwater, Justice Powell said the Court should withhold judgment so as not to “encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.” Goldwater, 444 U.S. at 997 (Powell, J., concurring). In Dellums, the district court similarly concluded that “unless the Congress as a whole, or by a majority, is heard from, the controversy cannot be deemed ripe.”
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Dellums, 752 F. Supp. at 1151. Both decisions address the narrow question of when so-called “legislative standing” claims are ripe for adjudication, and that is the only proposition for which this Court has ever cited Justice Powell’s concurrence. See Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34, 37 (2d Cir. 1985) (“So far as the allegations made by the congressional plaintiffs are concerned, we believe the claims they raise are not ripe for decision . . . .” (citing Goldwater, 444 U.S. at 997-98 (Powell, J., concurring))). That proposition has little relevance to a case brought by private parties.
The district court read Goldwater and Dellums to stand for a much broader proposition: that when the Executive takes an action for which congressional consent is required, the Judiciary “should not interfere unless and until Congress has asserted its authority and taken some sort of action with respect to [the President’s] alleged constitutional violations.” JA-351. As with its redressability analysis, the district court’s ripeness holding—if sustained—would implicate virtually all cases in which plaintiffs assert that Executive Branch agencies or officials have exceeded the bounds of their statutory authority. Almost everyone who challenges executive action on nonconstitutional grounds would concede that the action in question is one that the Executive Branch could take if Congress consented. But because Congress has not consented, the action—according to the challengers—is illegal. According to the district court’s reasoning, the challenge
29

would also be unripe. The district court articulates no limiting principle that would prevent its novel ripeness holding from swallowing up much of federal administrative law.
CONCLUSION For the foregoing reasons, amici respectfully urge this Court to reverse the judgment of the district court.

Dated: May 1, 2018

Respectfully submitted,
LEVI LUBARSKY FEIGENBAUM & WEISS LLP
By: /s/ Andrea Likwornik Weiss Andrea Likwornik Weiss
655 Third Avenue, 27th Floor New York, NY 10017 (212) 308-6100 aweiss@llfwlaw.com Counsel of Record for Amici Curiae Scholars of Administrative Law, Constitutional Law, and Federal Jurisdiction

30

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B). It contains 6,954 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and the addendum identifying amici. 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in a 14point Times New Roman font.

Dated: May 1, 2018

LEVI LUBARSKY FEIGENBAUM & WEISS LLP
By: /s/ Andrea Likwornik Weiss Andrea Likwornik Weiss
655 Third Avenue, 27th Floor New York, NY 10017 (212) 308-6100 aweiss@llfwlaw.com Counsel of Record for Amici Curiae Scholars of Administrative Law, Constitutional Law, and Federal Jurisdiction

31

CERTIFICATE OF FILING AND SERVICE I hereby certify, pursuant to Federal R. App. P. 25(c) and Second Circuit Rule 25.1, that on May 1, 2018 I caused a copy of the foregoing Brief for Amici Curiae Scholars of Administrative Law, Constitutional Law, and Federal Jurisdiction in Support of Appellants and Urging Reversal to be electronically filed with the Clerk of Court of the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system. All participants in this appeal are registered CM/ECF users and will be served by the appellate CM/ECF system. I further certify, pursuant to Second Circuit Local Rule 31.1, that I caused six paper copies of the foregoing brief to be filed with the Clerk of Court by hand delivery.

Dated: May 1, 2018

LEVI LUBARSKY FEIGENBAUM & WEISS LLP
By: /s/ Andrea Likwornik Weiss Andrea Likwornik Weiss
655 Third Avenue, 27th Floor New York, NY 10017 (212) 308-6100 aweiss@llfwlaw.com Counsel of Record for Amici Curiae Scholars of Administrative Law, Constitutional Law, and Federal Jurisdiction

32

ADDENDUM

ADDENDUM
Amici are scholars of administrative law, constitutional law, and federal jurisdiction. Their titles and institutional affiliations are listed for identification purposes only.
Bruce Ackerman Sterling Professor of Law and Political Science Yale University
Matthew Adler Richard A. Horvitz Professor of Law and Professor of Economics, Philosophy and Public Policy Duke Law School
Zachary Clopton Assistant Professor of Law Cornell Law School
Seth Davis Assistant Professor of Law University of California, Irvine School of Law
Frank Deale Professor of Law City University of New York School of Law
Michael Dorf Robert S. Stevens Professor of Law Cornell Law School
Daniel Farber Sho Sato Professor of Law University of California, Berkeley, School of Law
Martha Field Langdell Professor of Law Harvard Law School
33

Daniel Hemel Assistant Professor of Law University of Chicago Law School
Aziz Huq Frank and Bernice J. Greenberg Professor of Law University of Chicago Law School
Leah Litman Assistant Professor of Law University of California, Irvine School of Law
Jenny Martinez Professor of Law and Warren Christopher Professor in the Practice of International Law and Diplomacy Stanford Law School
Jerry Mashaw Sterling Professor Emeritus of Law and Professorial Lecturer in Law Yale Law School
Jonathan Masur John P. Wilson Professor of Law and David and Celia Hilliard Research Scholar University of Chicago Law School
Jon Michaels Professor of Law University of California, Los Angeles, School of Law
Richard Primus Theodore J. St. Antoine Collegiate Professor University of Michigan Law School
Eli Savit Adjunct Professor University of Michigan Law School
Joshua Schwartz E.K. Gubin Professor of Government Contracts Law The George Washington University Law School
34

Joan Steinman University Distinguished Professor of Law Chicago-Kent College of Law David Vladeck A.B. Chettle Chair in Civil Procedure Georgetown University Law Center Brian Wolfman Associate Professor of Law and Director, Appellate Courts Immersion Clinic Georgetown University Law Center Christopher Yukins Lynn David Research Professor in Government Procurement Law The George Washington University Law School
35

 
 No.  18-­474  

In the United States Court of Appeals for the Second Circuit
____________________________

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF, AND ERIC GOODE,
Plaintiffs-Appellants,

v.

DONALD J. TRUMP, in his ofﬁcial capacity as President of the United States of America,
Defendant-Appellee. ____________________________

On Appeal from the United States District Court for the Southern District of New York
Case No. 17-cv-458 (The Honorable George B. Daniels) _________________________________________________________

BRIEF OF PLAINTIFFS-APPELLANTS
_________________________________________________________

NORMAN L. EISEN* STUART C. MCPHAIL* ADAM J. RAPPAPORT* Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W. Washington, DC 20001 (202) 408-5565

DEEPAK GUPTA JONATHAN E. TAYLOR JOSHUA MATZ DANIEL TOWNSEND* Gupta Wessler PLLC 1900 L Street, N.W., Suite 312 Washington, DC 20036 (202) 888-1741 deepak@guptawessler.com

Counsel for Plaintiffs-Appellants

April 24, 2018

(Additional counsel listed on the next page)

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767
*Second Circuit admission pending

JOSEPH M. SELLERS DANIEL A. SMALL Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Washington, DC 20005 (202) 408-4600

CORPORATE DISCLOSURE STATEMENT Citizens for Responsibility and Ethics in Washington and Restaurant Opportunities Centers United have no parent corporations. Neither of them have stock, and hence no publicly held company owns 10% or more of their stock.
i

TABLE OF CONTENTS Table of authorities ............................................................................................... iii Introduction ............................................................................................................ 1 Jurisdictional statement .......................................................................................... 4 Statement of the issues............................................................................................ 4 Statement of the case and of the facts ..................................................................... 4
I. Nature of the case and proceedings below .......................................... 4 II. The Emoluments Clauses................................................................... 5
A. The original meaning of the Clauses ........................................ 5 B. The history and administration of the Clauses.......................... 8 III. President Trump’s violations of the Emoluments Clauses................... 9 IV. The competitive harm to the plaintiffs caused by President Trump’s violations of the Emoluments Clauses ................................. 13 1. Plaintiff Eric Goode................................................................. 13 2. Plaintiff Jill Phaneuf................................................................. 15 3. Plaintiff ROC United .............................................................. 16 V. The motion to dismiss and the district court’s opinion....................... 19 Standard of review ................................................................................................ 21 Summary of argument .......................................................................................... 21 Argument ..............................................................................................................25 I. The plaintiffs have Article III standing. ............................................. 25 A. The competitor-standing doctrine allows plaintiffs to use
economic logic to demonstrate Article III standing. ................ 27 B. Each plaintiff has competitor standing..................................... 31
1. Injury ............................................................................ 32 2. Causation ......................................................................36 3. Redressability ................................................................ 41 II. The zone-of-interests test does not bar the plaintiffs’ claims. .............45 III. There are no prudential barriers to standing. ................................... 50 A. The political-question doctrine does not bar this suit............... 51 B. The plaintiffs’ claims are ripe. .................................................55 Conclusion ............................................................................................................56
ii

Cases

TABLE OF AUTHORITIES

Adams v. Watson, 10 F.3d 915 (1st Cir. 1993) ..................................................................... 26, 28, 29, 34

American Institute of Certiﬁed Public Accountants v. IRS, 804 F.3d 1193 (D.C. Cir. 2015)........................................................................ 28, 33

American Insurance Co. v. Garamendi, 539 U.S. 396 (2003)............................................................................................ 46

Arnold Tours, Inc. v. Camp, 400 U.S. 45 (1970)...............................................................................................33

Association of Battery Recyclers, Inc. v. E.P.A., 716 F.3d 667 (D.C. Cir. 2013) ...............................................................................47

Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970) ..............................................................................................26

Baker v. Carr, 369 U.S. 186 (1962) .............................................................................................. 51

Bank of America Corp. v. City of Miami, 137 S. Ct. 1296 (2017) ........................................................................................... 46

Building & Construction Trades Council v. Downtown Development, Inc., 448 F.3d 138 (2d Cir. 2006)..................................................................................45

Clarke v. Securities Industries Association, 479 U.S. 388 (1987) ........................................................................................ 46, 50

Bond v. United States, 564 U.S. 211 (2011) ..................................................................................... 20, 24, 47

Boston Stock Exchange v. State Tax Commission, 429 U.S. 318 (1977)...............................................................................................47

C&A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383 (1994) ......................................................................................... 44, 54

iii

Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319 (Fed. Cir. 2008)............................................................... 28, 30, 31, 36
Cayuga Nation v. Tanner, 824 F.3d 321 (2d Cir. 2016) ....................................................................................21
Center for Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002) ............................................................................. 31, 47
Chrysler Group LLC v. Fox Hills Motor Sales, Inc., 776 F.3d 411 (6th Cir. 2015)................................................................................... 37
Clapper v. Amnesty International USA, 568 U.S. 398 (2013).............................................................................................. 25
Clinton v. City of New York, 524 U.S. 417 (1998)............................................................................................... 27
Cooper v. Texas Alcoholic Beverage Commission, 820 F.3d 730 (5th Cir. 2016) ................................................................. 29, 35, 36, 37
Cuyler v. Adams, 449 U.S. 433 (1981) ........................................................................................ 44, 54
Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286 (3d Cir. 2005) ................................................................................. 32
DEK Energy Co. v. FERC, 248 F.3d 1192 (D.C. Cir. 2001)............................................................................. 30
Department of Revenue v. James B. Beam Distilling Co., 377 U.S. 341 (1964)......................................................................................... 45, 54
District of Columbia & Maryland v. Trump, No. 17-Civ-1596, 2018 WL 1516306 (D. Md. Mar. 28, 2018) .............................. passim
Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010)...............................................................................................47
Fulani v. League of Women Voters Education Fund, 882 F.2d 621 (2d Cir. 1989) ........................................................................ 26, 28, 37
iv

Haitian Refugee Center v. Gracey, 809 F.2d 794 (D.C. Cir. 1987) ..............................................................................47
Hill v. Wallace, 259 U.S. 44 (1922)............................................................................................... 46
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977) ..............................................................................................45
In re McCormick & Co. Pepper Products Marketing & Sales Practices Litigation, 215 F. Supp. 3d 51 (D.D.C. 2016)..........................................................................28
In re U.S. Catholic Conference, 885 F.2d 1020 (2d Cir. 1989) ...................................................................... 27, 30, 32
INS v. Chadha, 462 U.S. 919 (1983) ............................................................................................. 46
International Brotherhood of Teamsters v. U.S. Department of Transportation, 724 F.3d 206 (D.C. Cir. 2013) ......................................................................... 31, 36
John v. Whole Foods Market Group, 858 F.3d 732 (2d Cir. 2017) ................................................................................... 25
Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186 (2d Cir. 1980) ...................................................................................28
Larson v. Valente, 456 U.S. 228 (1982) ..............................................................................................43
Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ...................................................................................... 29, 45
Liquid Carbonic Industries Corp. v. FERC, 29 F.3d 697 (D.C. Cir. 1994) ............................................................................... 30
Lousiana Energy & Power Authority v. FERC, 141 F.3d 364 (D.C. Cir. 1998) .............................................................................. 30
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................. 25
v

Maher Terminals, LLC v. Port Authority of New York & New Jersey, 805 F.3d 98 (3d Cir. 2015)....................................................................................47
Massachusetts v. E.P.A., 549 U.S. 497 (2007) .............................................................................................43
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) ............................................................................. 23, 46, 49, 50
Mendoza v. Perez, 754 F.3d 1002 (D.C. Cir. 2014) ............................................................................. 31
N.L.R.B. v. Noel Canning, 134 S. Ct. 2550 (2014)...........................................................................................47
National Credit Union Administration v. First National Bank & Trustee Co., 522 U.S. 479 (1998) ..............................................................................................33
New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002) .............................................................................. 31
NicSand, Inc. v. 3M Co., 507 F.3d 442 (6th Cir. 2007) ...........................................................................28, 29
Nixon v. United States, 506 U.S. 224 (1993)..............................................................................................54
Philadelphia Taxi Association, Inc v. Uber Technologies, Inc., 886 F.3d 332 (3d Cir. 2018) ..................................................................................28
Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. 1 (2009) ........................................................................................... 44, 54
Raymond Loubier Irrevocable Trust v. Loubier, 858 F.3d 719 (2d Cir. 2017) ....................................................................................21
Ross v. Bank of America, N.A., 524 F.3d 217 (2d Cir. 2008)...................................................................................28
Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994) ..................................................................................... 27
vi

Sherley v. Sebelius, 610 F.3d 69 (D.C. Cir. 2010) .......................................................................... passim
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976)............................................................................................... 40
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ........................................................................................... 25
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014)...................................................................................... 25, 51
Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568 (1985) ..............................................................................................55
TrafﬁcSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) ........................................................................... passim
U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978) ............................................................................................. 46
Wyoming v. Oklahoma, 502 U.S. 437 (1992) ............................................................................................. 49
Yakima Valley Memorial Hospital v. Washington State Department of Health, 654 F.3d 919 (9th Cir. 2011) ................................................................................. 46
Zivotofsky v. Clinton, 566 U.S. 189 (2012) .............................................................................................. 51
Constitutional provisions
U.S. Const. art. I, § 10, cl. 2 & 3 .............................................................................53
U.S. Const. art. I, § 9, cl. 8 ..................................................................................2, 6
U.S. Const. art. II, § 1, cl. 7 ......................................................................................7
Historical materials
Max Farrand, The Records of the Federal Convention of 1787.....................................6, 40
The Federalist No. 73 (Alexander Hamilton)................................................ 2, 7, 40, 48
vii

Joseph Story, Commentaries on the Constitution of the United States (1833) ......................... 6
Ofﬁce of Legal Counsel and Comptroller General Opinions
24 Op. Att’y Gen. 116 (1902) ................................................................................... 48
49 Comp. Gen. 819 (1970) ........................................................................................ 8
President Reagan’s Ability to Receive Retirement Beneﬁts from the State of California, 5 Op. O.L.C. 187 (1981).......................................................8, 9
Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96 (1986).................................. 8
Applicability of the Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13 (1994) ........................................................................................ 8
Memorandum for the Counsel to the President, Ofﬁce of Legal Counsel, Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 2009 WL 6365082 (Dec. 7, 2009) .......................................................................... 9
Books, articles, and other authorities
Philip Bump, Trump has visited a Trump-branded property every 2.8 days of his presidency, Wash. Post, Apr. 8, 2017 .....................................................................................35
Jane Chong, Reading the Ofﬁce of Legal Counsel on Emoluments, Lawfare, July 1, 2017, https://perma.cc/LQ6D-V5AM. ....................................................................... 8
David Fahrenthold & Jonathan O’Connell, Kuwaiti embassy returns to Trump hotel in D.C. for its national celebration, Wash. Post, Jan. 26, 2018, http://wapo.st/2FykU7d ............................................ 11
Rosalin S. Helderman & Tom Hamburger, Trump’s presidency, overseas business deals and relations with foreign governments could all become intertwined, Wash. Post (Nov. 25, 2016) ..........................39
viii

Mark Landler, Trump Welcomes Najib Razak, the Malaysian Leader, as President, and Owner of a Fine Hotel, N.Y. Times, Sept. 12, 2017, https://nyti.ms/2eUVsst .................................................................................... 11
Leah Litman & Daniel Hemel, On the Ripeness of Potted Plants and Other Non Sequiturs, Take Care (Dec. 22, 2017) .....................................................................................................45
John Mikhail, The Deﬁnition of “Emolument” in English Language and Legal Dictionaries, 1523–1806 (2017) ...................................................................................................7
John Mikhail, A Note on the Original Meaning of “Emolument”, Balkinization, Jan. 18, 2017, https://perma.cc/6EA5-JEEE.........................................................7
Kevin Miller & Scott Thistle, Luxury hotels, ﬁne dining for LePage on taxpayers’ dime, Portland Press Herald, July 23, 2017, https://perma.cc/YM2V-HKHF......................................12
Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump hotel is place to be, Wash. Post, Nov. 18, 2016, http://wapo.st/2uM0lNv ........................................................................ 11, 38, 39
Richard C. Paddock et al., Potential Conﬂicts Around the Globe for Trump, the Businessman President, N.Y. Times, Nov. 26, 2016............................................................................ 38, 39
Jed Shugerman & Gautham Rao, Emoluments, Zones of Interests, and Political Questions: A Cautionary Tale, 45 Hastings Const’l L. Quarterly 651 (2008) ....................................................... 49
Jessica Sidman, The Cheapest Cocktail at the Trump Hotel is Now $24, Washingtonian, Jan. 5, 2017, https://perma.cc/MH5M-47DY .................................................... 13
Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (2014) ......................................................................................................... 5
ix

Karen Yourish & Troy Griggs, Tracking the President’s Visits to Trump Properties, N.Y. Times, Feb. 2, 2018, http://nyti.ms/2uILVxL................................................................ 10
Malaysia DPM Arrives in Washington for Nuclear Security Summit, NAM News Network (Mar. 30, 2016), https://perma.cc/E8LD-XTGJ ......................................................................... 11
Donald Trump’s New York Times Interview: Full Transcript, N.Y. Times, Nov. 23, 2016, http://nyti.ms/2nAOfDc ........................................ 10
Texts of Carter Statement on Conﬂicts of Interest and Ethics; Appointees’ Guidelines, N.Y. Times, Jan. 5, 1977, http://nyti.ms/2fV5Pwz .............................................. 9
x

INTRODUCTION The plaintiffs in this case encompass hotels and restaurants in New York and Washington, DC. One is an association of thousands of restaurant workers and hundreds of restaurants—including some of the most highly rated establishments in each city. Another co-owns several of New York’s most celebrated hotels and restaurants. And a third books embassy functions for two top Washington hotels. They are now in the unenviable position of having to compete with businesses owned by the President of the United States. Those businesses give one group of customers—foreign and domestic ofﬁcials—the opportunity to enrich him personally. President Trump, in turn, has used his ofﬁce as a platform to promote his businesses to these ofﬁcials. Before taking ofﬁce, he held an event pitching his Washington hotel to roughly 100 foreign diplomats, having hired a “Director of Diplomatic Sales” whose sole job is to generate proﬁts by luring foreigngovernment business from other hotels. He has even announced that when governments “buy [things] from [him],” he “like[s] them very much.” JA-42. Ofﬁcials have gotten the message, expressing their intention to book rooms or hold events at the President’s properties to garner his favor. The President’s conduct puts the plaintiffs at a distinct disadvantage in competing for foreign and domestic government clientele: While they can offer the ﬁnest hospitality, they cannot offer the ability to curry favor with the President.
1

The Framers foresaw the danger of an Executive who exploits his ofﬁce for proﬁt at the expense of the citizenry, making him susceptible to those who would “corrupt his integrity by appealing to his avarice.” The Federalist No. 73 (Hamilton). To guard against foreign corruption, the Constitution’s Foreign Emoluments Clause bars the President from accepting any “Emolument”—i.e., any proﬁt or gain—from a foreign state unless Congress consents. U.S. Const. art. I, § 9, cl. 8. And to prevent domestic corruption, the Domestic Emoluments Clause bars the President from accepting, beyond his ﬁxed compensation, “any other Emolument from the United States, or any of them.” U.S. Const. art. II, § 1, cl 7. These Clauses admittedly raise issues of ﬁrst impression in the courts. And below, the President urged an extreme, counterintuitive reading of the Clauses that would allow him to accept all manner of payments from foreign and domestic governments.
But this Court need not confront such novel issues now. This appeal turns only on whether the plaintiffs have Article III standing and a justiciable case, and can therefore be resolved on the basis of settled law. That law includes the competitor-standing doctrine, which allows plaintiffs to establish Article III standing as a matter of economic logic when they compete with the party that beneﬁts from the defendant’s unlawful conduct. The plaintiffs here have shown—through detailed allegations, declarations, and the unrebutted testimony of hotel- and restaurantindustry experts—that they compete with the President’s properties, offering simi-
2

lar services, prices, and quality in close proximity. To take one example: A U.N. diplomat looking to book a private event for a visiting delegation might choose among the two-star Michelin restaurants near Central Park. There are only ﬁve— including Jean-Georges at the Trump International Hotel and The Modern, a member of plaintiff ROC. They are just a ﬁve-minute cab ride apart and have virtually identical price ranges and ratings. JA 292, 312–15.1 It is difﬁcult to deny that these highly elite restaurants compete with each other.
Another district court recently came to the same conclusion in a separate case challenging the President’s Emoluments Clauses violations. As that court explained, “plaintiffs with an economic interest have standing to sue to prevent a direct competitor from receiving an illegal market beneﬁt leading to an unlawful increase in competition.” District of Columbia & Maryland v. Trump, No. 17-Civ-1596, 2018 WL 1516306, at *11 (D. Md. Mar. 28, 2018). That reasoning is equally applicable here. In concluding otherwise, the district court misunderstood the nature of competitor standing, failed to address controlling precedents, and engaged in its own factual speculation while drawing every inference against the plaintiffs at the pleading stage. Separately and together, these errors require reversal.
1 Jean-Georges offers a prix ﬁxe menu for $218, The Modern for $228. https://perma.cc/2J4J-NQ7H; https://perma.cc/2J8T-XJR2. They were ranked #13 and #14, respectively, in Business Insider’s “50 Best Restaurants in America,” https://read.bi/2eTCl5x. The same publication ranked them #11 and #12 among “Most Expensive Restaurants in New York City.” https://read.bi/2Hq9Big. Both have TripAdvisor ratings of exactly 4.5.
3

JURISDICTIONAL STATEMENT The district court had jurisdiction under 28 U.S.C. §§ 1331 and 2201. On December 21, 2017, it entered judgment against the plaintiffs. JA-353. On February 16, 2018, the plaintiffs timely ﬁled their notice of appeal. JA-354–56; see also Fed. R. App. P. 4(1)(B). This Court has jurisdiction under 28 U.S.C. § 1291. The plaintiffs have established Article III standing under the competitor-standing doctrine. 2
STATEMENT OF THE ISSUES 1.   Did the district court err in dismissing the plaintiffs’ claims for lack of Article
III standing? 2.   Did the district court err in dismissing the plaintiffs’ claims on the ground
that they fall outside the “zone of interests” of the Emoluments Clauses? 3.   Did the district court err in holding that the plaintiffs’ claims present political
questions that are textually committed to Congress? 4.   Did the district court err in holding that the plaintiffs’ claims are not ripe?
STATEMENT OF THE CASE AND OF THE FACTS I.   Nature of the case and proceedings below
The plaintiffs—competitors of the President’s businesses—seek equitable relief to redress the competitive harm they suffer due to his unlawful acceptance of foreign and domestic emoluments. The district court (The Honorable George
2 The plaintiffs in the district court included Citizens for Responsibility and Ethics in Washington (CREW). Although CREW joined the notice of appeal, CREW is no longer appealing the district court’s judgment.
4

Daniels) granted the President’s motion to dismiss for lack of jurisdiction under Rule 12(b)(1). CREW v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y. 2017) (JA-324–52). II.   The Emoluments Clauses
A.   The original meaning of the Clauses When the Framers gathered in Philadelphia in 1787, they were profoundly concerned with protecting the new government from corruption—the risk that ofﬁceholders’ “private interests” would improperly inﬂuence their “exercise of public power.” Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United 38 (2014). Keen students of history and human nature, they knew that corruption takes many forms, and that it could slowly poison the republic. Two potential sources of corruption were seen as so uniquely intolerable that the Framers banned them outright in the Constitution. The ﬁrst was the risk that foreign governments would seek to inﬂuence federal ofﬁcers by bestowing gifts, money, and other things of value upon them. See id. at 19–20. Although this practice was condoned across the ocean, the Framers saw a distinct danger to the new nation. Id. at 20. Most famously, Benjamin Franklin’s acceptance of a diamond-encrusted box from King Louis XIV stoked fear that he might be unconsciously corrupted, leading Franklin to request (and receive) congressional approval to keep the present. Id. at 1–5; see 3 Farrand, The Records of the Federal Convention of 1787, at 327 (Edmund Randolph).
5

The Framers responded to these concerns with the Foreign Emoluments Clause—a ﬂat ban on federal ofﬁcials “accept[ing] any present, Emolument, Ofﬁce, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. Through this broad language, the Framers sought prophylactically to guard against “foreign inﬂuence of every sort.” 3 Story, Commentaries on the Constitution of the United States 202 (1833). At the same time, the Clause authorized Congress to consent to the receipt of otherwise-forbidden beneﬁts from foreign powers—thereby transforming secretive transfers of foreign wealth into matters of vital public inquiry. Ultimately, the theory of the Foreign Emoluments Clause is that an ofﬁceholder who receives something of value from a foreign power can be imperceptibly induced to compromise what the Constitution insists be his or her exclusive loyalty: the best interest of the United States.
A second concern was corruption from within. Having spent years dissecting King George III’s use of gifts, ofﬁces, and other inducements to manipulate Parliament, the Framers worried that the nation’s powerful chief executive would be tempted to use his ofﬁce to enrich himself, and that other parts of the government—state or federal—could seek to “corrupt his integrity by appealing to his avarice.” The Federalist No. 73 (Hamilton). To avoid that unnerving possibility, the Framers included the Domestic Emoluments Clause. It entitles the president to receive a salary and beneﬁts ﬁxed by Congress ahead of time, but prevents his
6

compensation from being altered. More important, it categorically forbids him from receiving “any other Emolument from the United States, or any of them.” U.S. Const. art. II, § 1, cl. 7. This Clause cannot be waived by Congress.
The Framers’ broad, preventive goals are reﬂected in the language they employed. Although the word “emolument” has fallen out of regular use, Foundingera dictionaries illustrate that its meaning encompassed “proﬁt,” “advantage,” and “gain.” JA-87–88 (Mikhail, The Deﬁnition of “Emolument” in English Language and Legal Dictionaries, 1523–1806). Founding-era court cases conﬁrm that “emolument” did not have a narrow, technical import, but was instead roughly synonymous with “beneﬁt.” See, e.g., Himely v. Rose, 9 U.S. (5 Cranch) 313, 318–19 (1809) (“proﬁts and advantages”); Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 688 (1819) (“beneﬁt”); Clark v. City of Washington, 25 U.S. (12 Wheat.) 40, 53 (1827) (“proﬁt” or “beneﬁt” from “proceeds,” “funds or revenue” from a lottery); see also Mikhail, A Note on the Original Meaning of “Emolument”, Balkinization, Jan. 18, 2017, https://perma.cc/6EA5-JEEE (showing that prominent Founding-era sources used “emolument” to refer to “the consequences of ordinary business dealings”).
As Joseph Story remarked, this prohibition “puts it out of the power of any ofﬁcer of the government” to decide for himself whether to accept forbidden gifts or money. 3 Story, Commentaries 202. Constitutional law—not individual discretion—controls the circumstances under which ofﬁceholders may accept private
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ﬁnancial beneﬁts. As the Framers knew all too well, even the best among us are susceptible to being inﬂuenced when receiving gifts, money, ofﬁces, or titles.
B.   The history and administration of the Clauses Although hardly the most famous part of the Constitution, the Emoluments Clauses have long been a routine part of federal administration. Indeed, the rule against accepting “emoluments” is administered by ethics ofﬁcials across the government every day. Accordingly, there is a rich body of practice and precedent from the Justice Department’s Ofﬁce of Legal Counsel (OLC) and the Comptroller General. See Chong, Reading the Ofﬁce of Legal Counsel on Emoluments, Lawfare, July 1, 2017, https://perma.cc/LQ6D-V5AM. As those ofﬁces have recognized, the Foreign Emoluments Clause is “a prophylactic provision,” 10 Op. O.L.C. 96, 98 (1986), that protects against the possibility of “undue inﬂuence and corruption by foreign governments.” 18 Op. O.L.C. 13, 15 (1994). For that reason, its “drafters intended the prohibition to have the broadest possible scope and applicability.” 49 Comp. Gen. 819, 821 (1970). Its domestic counterpart has likewise been given a broad reading to prevent “Congress or any of the states from attempting to inﬂuence the President through ﬁnancial awards or penalties.” 5 Op. O.L.C. 187, 189 (1981). Against the backdrop of this accumulated precedent, previous presidents have taken great care to comply with their constitutional obligations. They have publicly disclosed tax returns and other ﬁnancial information, divested themselves
8

of assets presenting the potential for conﬂicts, and sought OLC’s advice before accepting anything that might possibly fall within the ambit of the Clauses. President Carter, for example, put his peanut farm into an independent trust to guarantee that “the Carter family [would] not be affected ﬁnancially from proﬁts or losses of any of the farm operations.” Carter Statement on Conﬂicts of Interest and Ethics, N.Y. Times, Jan. 5, 1977, http://nyti.ms/2fV5Pwz. President Reagan exercised no less care, requesting a formal OLC opinion on whether he could accept— consistent with the Domestic Emoluments Clause—the pension to which he was legally entitled as the former California governor. See 5 Op. O.L.C. 187 (1981). And President Obama would not accept the Nobel Peace Prize without ﬁrst securing an OLC opinion on whether he could do so consistent with the Foreign Emoluments Clause. See Memorandum for the Counsel to the President, Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipts of the Nobel Peace Prize, 2009 WL 6365082 (Dec. 7, 2009). These presidents, like many other ofﬁcials, have labored to conform their actions to a widely accepted, longestablished understanding of the Emoluments Clauses. III.   President Trump’s violations of the Emoluments Clauses
President Trump, by contrast, has eschewed this tradition by refusing to take steps to comply with the Constitution. Although his sons are temporarily managing the business’s day-to-day affairs, he receives regular updates from them and knows
9

that control of the company will revert to him after his term in ofﬁce ends. JA-34 ¶¶ 43–44. His ownership stake creates a direct link between the President’s private bank account and the success of the businesses that bear his name. Not coincidentally, the President has consistently used his ofﬁcial position as a platform to advertise his properties, visiting one every three days on average. Yourish & Griggs, Tracking the President’s Visits to Trump Properties, N.Y. Times, Feb. 2, 2018, http://nyti.ms/2uILVxL.
President Trump’s practice of disregarding the Emoluments Clauses has been accompanied by disregard for procedures designed to ensure compliance. Rather than secure a written OLC opinion—much less inform Congress of his ﬁnancial arrangements and seek its consent—the President has refused to release his tax returns or make a public accounting of his ﬁnancial entanglements. He has also asserted, in deﬁance of the Constitution, that his ﬁnancial ties to foreign powers (including those hostile to the United States) are ungoverned by law and ethical requirements because “the president can’t have a conﬂict of interest.” Donald Trump Interview, N.Y. Times, Nov. 23, 2016, http://nyti.ms/2nAOfDc.
Since taking ofﬁce, President Trump has only deepened his ﬁnancial entanglements with foreign and domestic governments. As a result, he is receiving prohibited “emoluments.” To name just a handful here: After the election, the Embassy of Kuwait moved its 2017 National Day celebration from the Four Seasons
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to the Trump International Hotel D.C., paying an estimated $40,000 to $60,000 to the business that Trump owns—and reportedly did so under pressure from the Trump Organization. JA-34–40 ¶¶ 72–76. Just recently, the Embassy returned to the Trump International Hotel for its 2018 National Day celebration, despite criticism that the initial move was improper. Fahrenthold & O’Connell, Kuwaiti embassy returns to Trump hotel, Wash. Post, Jan. 26, 2018, http://wapo.st/2FykU7d. Similarly, in the fall of 2017, the Prime Minister of Malaysia and his delegation stayed at the Trump International Hotel while visiting Mr. Trump at the White House. Landler, Trump Welcomes Najib Razak, the Malaysian Leader, as President, and Owner of a Fine Hotel, N.Y. Times, Sept. 12, 2017, https://nyti.ms/2eUVsst. In contrast, the Malaysian delegation stayed at the Four Seasons when it visited in 2016. See Malaysia DPM Arrives in Washington, NAM News (Mar. 30, 2016), https://perma.cc/E8LD-XTGJ.
Before he took ofﬁce, President-elect Trump speciﬁcally sought out this kind of business. While he still ran the Trump Organization, the Trump International Hotel D.C. held a post-election event pitching itself to roughly 100 foreign diplomats—having hired a Director of Diplomatic Sales whose sole duty is to generate proﬁts from foreign governments. JA-37–38 ¶¶ 60–61; see also O’Connell & Jordan, For foreign diplomats, Trump hotel is place to be, Wash. Post, Nov. 18, 2016, http://wapo.st/2uM0lNv. Diplomats have expressed an intention to book rooms or hold events at the hotel to curry favor with Trump. JA-38 ¶ 62. These foreign
11

ofﬁcials’ attitudes are particularly understandable in light of the President’s long history of making statements that explicitly link his personal view of foreign nations with whether they help or hurt his businesses. JA-35–36 ¶¶ 51–52.
The President’s embrace of emoluments is not limited to foreign ofﬁcials. The Governor of Maine spent at least $35,000 in state funds on trips to Washington last spring—during which time the Governor and other state ofﬁcers stayed at the President’s hotel and ate at his restaurant. Miller & Thistle, Luxury hotels, ﬁne dining for LePage on taxpayers’ dime, Portland Press Herald, July 23, 2017, https://perma.cc/YM2V-HKHF. And the Trump International Hotel D.C. has received a substantial beneﬁt from the General Services Administration, a federal agency. The hotel’s lease with the GSA expressly forbids any elected federal ofﬁcial from beneﬁting from it. JA-50–52 ¶¶ 130–45. Yet just one week after the President released a proposed budget increasing the GSA’s funding while cutting nearly all other non-defense-related spending, the GSA issued a letter allowing the hotel to continue with the lease, despite the very substantial beneﬁt to its owner. Id.
The President has capitalized on the increased demand from foreign and domestic ofﬁcials by raising the prices at his businesses since Election Day 2016. Cocktails at the Trump International Hotel D.C.—now a watering hole for foreign dignitaries, JA-37–41 ¶¶ 57–89—cost between $16 and $20 when the hotel opened in September 2016, and then spiked to a range of $24 to $100 after the election. Sid-
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man, The Cheapest Cocktail at the Trump Hotel is Now $24, Washingtonian, Jan. 5, 2017, https://perma.cc/MH5M-47DY. The President has used the White House to market his businesses, even as they have raised prices to beneﬁt from his ofﬁce. IV.   The competitive harm to the plaintiffs caused by President
Trump’s violations of the Emoluments Clauses The President’s new foreign and domestic governmental patrons did not materialize out of thin air. They moved their business from existing hotels and restaurants that cater to high-end clientele. As conﬁrmed by Christopher Muller and Rachel Roginsky—experts, respectively, in the restaurant and hospitality industries—the plaintiffs in this action compete with the President’s hotels and restaurants over that exact customer base.3 The plaintiffs have thus been placed at a competitive disadvantage by the President’s constitutional violations.
1.   Plaintiff Eric Goode Eric Goode co-owns several celebrated hotels in New York, including the Bowery Hotel in the Lower East Side and Maritime Hotel in Chelsea. JA-294, JA296–98 ¶¶ 1, 10–11, 21–22. He also co-owns numerous restaurants, including The Park, Waverly Inn, and Gemma. Id. These properties are frequented by diplomats
3 Dr. Muller is Professor and former Dean of Boston University School of Hospitality Administration, with more than 30 years of experience in restaurant management, consulting, and teaching. JA-305–06 ¶¶ 1–8. Professor Roginsky has 30 years of experience in hospitality consulting and is an adjunct professor at the Boston University School of Hospitality Administration, where she teaches Hospitality Market Feasibility and Valuation. JA-276–77 ¶¶ 1–10.
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and other government ofﬁcials. JA-294, JA-301–03 ¶¶ 3, 47–50. Goode, a savvy businessman with intimate knowledge of his market, has concluded that “[s]ome of my hotels and restaurants compete with some of Defendant’s hotels and restaurants because they have similar prices, quality and reputations that make both attractive to a common set of customers, and they are just a short cab ride away from one another.” JA-294 ¶ 2; see also JA-73–75 ¶¶ 228–34.
This conclusion is supported by detailed factual allegations and expert testimony. As Professor Roginsky explains, “hotels compete with each other if they market to and attract customers from a common set of visitors.” JA 277 ¶ 14. Hotels are “[p]rimary competitors” if they “market to and attract customers from essentially the same pool of visitors,” which “occurs among lodging facilities that are similar with respect to the following criteria: location, facilities, services, amenities, class, image, and price.” Id. ¶ 15. By deﬁnition, exposure to such competition can result in a hotel suffering economic injury. See id. ¶ 14.
Applying these criteria to the Bowery Hotel, it becomes clear that it competes with the Trump International Hotel New York, which is a short cab ride away. JA-279 ¶ 24. It is reasonable to further conclude that these properties compete for business from government ofﬁcials. Goode’s facilities have historically received signiﬁcant government patronage. JA-301–303 ¶¶ 47–50. That is consistent with the fact that there are many reasons “for higher rated government visitors to
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travel to New York City and stay at high-end hotels.” JA-282–84 ¶¶ 42–50. Professor Roginsky concludes that “government travelers . . . rent rooms and suites at . . . the Trump International New York, the Bowery, [and] the Maritime.” JA-284. It follows that competition between Goode properties and Trump properties includes competition for government business.
2.   Plaintiff Jill Phaneuf Phaneuf has been contracted to book events for the Kimpton Carlyle and Kimpton Glover Park Hotels in D.C., with a focus on embassy events and political functions involving foreign governments. JA-72–73 ¶ 221. Her compensation under her contract depends largely on payment of a percentage of gross receipts arising from events that she generates. Id. If she books less foreign-government business, she makes less money. Id. And because of the President’s illegal conduct, she now faces intensiﬁed competition from Trump International Hotel D.C., which has strongly promoted its properties and sought business from the diplomatic community—the very community most eager to solicit goodwill from the President. JA-37– 38, JA-73 ¶¶ 60–63, 222–25. The Phaneuf and Muller declarations further conﬁrm that she stands to lose as a result of the unlawful competitive advantage that President Trump’s private properties now enjoy. The Carlyle and Glover Park Hotels are surrounded by embassies and government buildings, and are located within easy driving distance
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of Trump International Hotel D.C. JA-269–72 ¶¶ 2–3, 12–14. Both hotels have highly rated, top-tier restaurants: the Riggsby at the Carlyle, and Casolare at Glover Park. JA-270–72 ¶¶ 5–7, 16. Each restaurant has numerous event spaces available. JA-271, JA-273 ¶¶ 8–11, 17–19. And as Phaneuf explains, these spaces compete for government business with event spaces at Trump International Hotel D.C. JA-269–72 ¶¶ 2, 12. Because Phaneuf’s task is booking diplomatic business, she is harmed by the illegal beneﬁt that the President has conferred on his own property. JA-269 ¶ 1.
Dr. Muller has carefully compared the Riggsby and Casolare restaurants to BLT Prime (the restaurant at Trump International Hotel D.C.). JA-321 ¶¶ 88–90. He has also engaged in a thorough review of event spaces at these facilities— considering size, quality, location, and distance to embassies and government buildings. JA-321–22 ¶¶ 89–91, 94. He concludes that the three event rooms at the Riggsby, and a ballroom at Casolare and its Cocktail Garden, compete with similar spaces at Trump International Hotel D.C. See id. Dr. Muller’s unrebutted expert testimony thus conﬁrms that the event spaces Phaneuf seeks to book for embassy events and political functions do, in fact, compete with the President’s property.
3.   Plaintiff ROC United ROC United is a nonproﬁt organization dedicated to improving wages and working conditions in the restaurant industry. JA-286 ¶ 2. Its members include nearly 200 restaurant members and 25,000 restaurant employees. Id. ¶ 5. ROC sues
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on behalf of itself and its members because the President’s illegal conduct has exposed ROC’s restaurant and worker members to increased competition with respect to prospective government business. See id. ¶ 6; JA-66–72 ¶¶ 195–220.
Celebrity chef Tom Colicchio explains that his ROC-member restaurants in New York compete with restaurants located in the President’s New York properties because they “market to, solicit, and attract similar customers, including foreign, federal, state, and local government ofﬁcials.” JA-256–57 ¶ 3. Drawing on three decades in New York’s restaurant industry, he then describes, in detail, why he believes that his properties compete with Mr. Trump for government business. JA257–62 ¶¶ 8–29. James Mallios, managing partner of ROC-member restaurants Amali and Amali Mou, similarly declares that “I consider certain of Defendant’s restaurants in New York City to be competitors of [my restaurants] because his restaurants are located just a short cab ride [away], and have similar prices, quality and reputations as my two restaurants.” JA-263 ¶ 2. Mallios, too, regularly hosts governmental ofﬁcials. JA-263, JA-267 ¶ 3, 24–29. He adds that he has seen a loss of tax-exempt sales at Amali since the election, which “reﬂects a decline in government business” and has led him to take costly steps in response. JA-267 ¶¶ 28–29.
Dr. Muller reviewed information about ROC members. JA-306 ¶ 11. Applying his expertise and the methodology described above, he concludes (without rebuttal) that numerous ROC members compete with the President’s properties,
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and do so in an environment brimming with foreign consulates and domestic
government ofﬁces. To take a few examples:
•   At least seven ROC restaurants compete with at least one of the restaurants at Trump Tower New York.4
•   At least three ROC restaurants compete for government-banquet business with Trump Tower event spaces.5
•   At least ﬁve ROC restaurants compete with at least one of the restaurants at Trump International Hotel New York, Jean-Georges and Nougatine.6
•   At least seven ROC restaurants also compete with the event spaces at Trump International Hotel New York.7
•   At least three ROC restaurants compete with a restaurant or event space at Trump International Hotel D.C. (BLT Prime and the event spaces it caters).8
To summarize: Unquestioned expert testimony, detailed factual allegations,
and analyses offered by Colicchio, Mallios, and Jayaraman all conﬁrm that ROC
restaurants and worker members compete with Mr. Trump’s private properties.
4 JA-309–10 ¶¶ 24–29; JA-264, JA-266 ¶¶ 4, 19 (Amali, Amali Mou, Café 2, Terrace 5, Espresso Bar, The Modern, Riverpark).
5 JA-310–311¶¶ 29-34 (The Modern, Amali, Riverpark). 6 JA-313–14 ¶¶ 43–49; JA-259–60 ¶¶ 14, 21; JA-264 ¶ 4 (Amali, The Modern, The Grammercy Tavern, Craft, Riverpark). 7 JA-314–15 ¶¶ 50–56 (Amali, The Modern, The Gramercy Tavern, Craft, Riverpark); JA-291–92 ¶¶ 24–25 (Breslin and Spotted Pig). 8 JA-319–22 ¶¶ 77–93 (Jaleo DC, Zaytinya, Minibar).
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V.   The motion to dismiss and the district court’s opinion Because the President’s constitutional violations cause them competitive
harm, the plaintiffs ﬁled this suit seeking equitable relief. JA-24–27 ¶¶ 11–20. The President moved to dismiss the complaint. See Dist. Ct. ECF No. 35. He ﬁrst argued that the plaintiffs lack Article III standing and cannot satisfy a handful of justiciability requirements. Alternatively, he argued that the plaintiffs failed to state a claim. Here he departed from all recognized interpretations of the Emoluments Clauses, contending that he may accept unlimited sums from foreign powers so long as he does not personally perform any services in exchange. See ECF No. 99, at 32–33.
The district court dismissed the complaint under Rule 12(b)(1). JA-324–52. First, it concluded that the plaintiffs lack standing. It did not dispute the plaintiffs’ showing that they compete with the President’s properties for government clientele. JA-336. Instead, without citing any allegations, or evidence, or competitor-standing precedents, it opined that the plaintiffs failed adequately to allege that Mr. Trump’s conduct “caused [their] competitive injury and that such an injury is redressable.” JA-335. On causation, the court speculated that the President’s unlawful acceptance of emoluments while holding ofﬁce will not confer an advantage on his properties because other factors might also inﬂuence where foreign and domestic government ofﬁcials take their business. JA-336. On redressability, it dismissed the plaintiffs’ case because “there is no remedy this Court can fashion to level the playing ﬁeld
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for Plaintiffs as it relates to overall competition,” from both “government and nongovernment customers alike.” JA-337. The district court added that the hypothetical possibility of congressional consent to the President’s receipt of foreign emoluments defeats redressability. Id.
Second, the court also held that the plaintiffs lacked standing because their claims fall outside the “zone of interests” of the Emoluments Clauses. JA-338–40. The court did not cite any case dismissing, on zone-of-interest grounds, an equitable claim seeking to prevent the violation of a structural constitutional provision. Nor did it recognize the principle that, because structural provisions ultimately “protect the individual,” those who suffer Article III injury are not barred from seeking equitable relief. Bond v. United States, 564 U.S. 211, 222 (2011). The court offered no reason why the Emoluments Clauses—structural provisions deﬁning how federal ofﬁceholders may interact with foreign and domestic governments—would warrant an exception to this principle. Instead, the court relied entirely on a dissent from Justice Scalia, and noted that the Emoluments Clauses prohibit only some proﬁteering, not all proﬁteering.
Finally, after concluding that it lacked Article III jurisdiction, the district court proceeded to weigh in on two “prudential considerations” that had not been raised by the President. JA-348. It ﬁrst held that the plaintiffs’ allegations present a political question textually committed to Congress—even though numerous other
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constitutional provisions with near-identical “consent of Congress” language have long been held justiciable. And second, it held that the plaintiffs’ claims are unripe because Congress hasn’t decided whether to consent to the President’s foreign emoluments—even though the Constitution provides that such emoluments are illegal unless and until Congress afﬁrmatively says otherwise.
STANDARD OF REVIEW This Court reviews dismissals under Rule 12(b)(1) de novo, “accepting as true the allegations in the complaint and drawing all reasonable inferences in favor of the plaintiff.” Cayuga Nation v. Tanner, 824 F.3d 321, 327 (2d Cir. 2016). In addition, the Court is free to consider “all extrinsic evidence proffered by the parties to the district court in support of their jurisdictional positions.” Raymond Loubier Irrevocable Trust v. Loubier, 858 F.3d 719, 725 (2d Cir. 2017).
SUMMARY OF ARGUMENT I. Standing. The competitor-standing doctrine allows plaintiffs to rely on economic logic to establish Article III standing where the defendant’s unlawful conduct subjects them to increased competition. As courts have explained in cases involving antitrust, unfair competition, and regulatory challenges, a competitor plaintiff need only show that she competes in the same arena as the party who beneﬁts from the defendant’s unlawful conduct.
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This suit alleges that the President has adopted an unlawful practice of accepting emoluments from foreign and domestic ofﬁcials through his hotels and restaurants. There can be no doubt that plaintiffs Goode, Phaneuf, and ROC have adequately demonstrated—through detailed allegations, declarations, and expert testimony—that they compete in the same arena with the President’s properties. While courts often ﬁnd competitor standing in national or international markets, the plaintiffs here compete with the President’s hotels and restaurants in speciﬁc and adjoining neighborhoods, offering similar goods, services, quality, and prices. It follows that they have suffered injury-in-fact.
The district court, however, held that the plaintiffs failed to establish causation and redressability. On causation, it speculated that the plaintiffs’ “loss of business” could result from “government ofﬁcials’ independent desire to patronize Defendant’s businesses.” JA-336. But the plaintiffs don’t argue that their only injury is loss of particular customers. Nor do they deny that government ofﬁcials might weigh other considerations in deciding where to take their business. Under precedent, the relevant question is whether the plaintiffs have adequately alleged that the President’s receipt of emoluments has injured them by forcing them to compete in an unlawfully skewed market. The plaintiffs’ allegations are more than adequate. First, they have alleged that governments now prefer the President’s properties because they can confer emoluments on him by going there. Foreign ofﬁcials
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openly admit as much. Second, the President himself has encouraged such conduct by stating that his regard for foreign nations is linked to how much they patronize his businesses. Third, it is inconsistent with the Emoluments Clauses’ design to assume that the opportunity to enrich the President cannot tempt ofﬁcials to inﬂuence him. The Clauses rest on the Framers’ contrary assumption.
On redressability, the district court nakedly speculated that the plaintiffs could face increased competition for non-governmental business. But that is irrelevant; the relevant market is the one for governmental business at hotels and restaurants in New York and Washington. The plaintiffs allege that the President’s acceptance of emoluments, in that speciﬁc market, injures them by placing an illegal thumb on the scales. If the court grants relief, this discrete competitive injury would necessarily be redressed to some degree—which is all that Article III requires.
II. Zone of Interests. The district court held that the plaintiffs “do not fall within the zone of interests of the Emoluments Clauses.” JA-333. But contrary to the district court’s rigorous view of the test—which it based on a dissenting opinion that it cited as a majority—the zone-of-interests test is undemanding, and forecloses suit only when a plaintiff’s interests are “marginally related to or inconsistent with the purposes” of the relevant provision. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). Neither the Supreme Court nor this Court has ever dismissed a case on zone-of-interest grounds where plaintiffs
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with standing sought to prevent the violation of a structural constitutional provision. In such cases, “individuals who suffer otherwise justiciable injury may object,” and courts may “adjudicate [their] claim.” Bond, 564 U.S. at 220, 223.
In any event, the plaintiffs’ interests here are directly tied to the Emoluments Clauses. An “emolument” is a “gain,” and one person’s gain is another’s loss. The plaintiffs allege that the President is using his ofﬁce to enrich himself by accepting emoluments—often at their expense. Far from being “marginally related” or “inconsistent” with the Clauses’ purposes, this interest strikes at their core.
III. Political Question and Ripeness. The district court also justiﬁed its dismissal based on two “prudential” grounds: the political-question doctrine and ripeness. As to the ﬁrst, it concluded that “this is an issue committed exclusively to Congress” because Congress may consent. JA-349. But the Domestic Emoluments Clause has no consent exception. And the Foreign Emoluments Clause makes the acceptance of emoluments illegal unless Congress consents—not the other way around. The “Consent of Congress” language makes no sense if the Clause can be enforced solely by Congress. Legislators wouldn’t need to “consent” to an ofﬁcial’s acceptance of emoluments; they could just do nothing. The wrongheadedness of this reading is conﬁrmed by precedent addressing parallel constitutional provisions providing for congressional consent—which have long given rise to justiciable suits and have never been thought to create political questions.
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The same reasons largely dispose of the district court’s ripeness analysis, which holds that the claims in this case cannot be ripe until Congress decides to “confront the defendant over a perceived violation of the Foreign Emoluments Clause.” JA-351. The President is violating the Clause now. The plaintiffs are being injured now. Their claims should be adjudicated on the merits.
ARGUMENT I.   The plaintiffs have Article III standing.
To pursue claims in federal court, a plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The injury must be “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). This Court has emphasized that the injury requirement is “a low threshold,” meant only to ensure that “the plaintiff has a personal stake in the outcome of the controversy.” John v. Whole Foods Mkt. Grp., 858 F.3d 732, 736 (2d Cir. 2017).9
Here, President Trump’s acceptance of emoluments violates rules that protect our constitutional order, and thereby affects every American. But his conduct also inﬂicts concrete and particularized injury on the plaintiffs. See Ass’n of Data
9 Although Clapper v. Amnesty International, 568 U.S. 398, 409 (2013), suggested that plaintiffs must show that future injury is “certainly impending,” the Court has since clariﬁed that “an allegation of future injury may sufﬁce if the threatened injury is ‘certainly impending,’ or there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014).
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Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154 (1970) (holding that an injured party “may be a reliable private attorney general to litigate [ ] issues of the public interest”). Speciﬁcally, the President’s illegal acceptance of emoluments has tilted the marketplace and skewed the incentives of its participants, particularly disadvantaging (and thus injuring) the plaintiffs, who compete with his hotels and restaurants for governmental business. See TrafﬁcSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825 (9th Cir. 2011); Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010); Adams v. Watson, 10 F.3d 915, 921 (1st Cir. 1993); Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 626 (2d Cir. 1989).
At bottom, the plaintiffs seek only a straightforward application of settled competitor-standing precedent. President Trump has adopted an unlawful practice of accepting emoluments from foreign and domestic ofﬁcials. As evidenced by their conduct and public statements, some ofﬁcials are ready to play along, conferring emoluments on him—in particular, through his hotels and restaurants. As a result, the President’s hotels and restaurants are now more attractive to those ofﬁcials. And the plaintiffs, who compete with the President’s hotels and restaurants, have been placed at a competitive disadvantage with respect to this set of potential customers. If the court were to grant declaratory or injunctive relief, that discrete injury would be redressed. The plaintiffs therefore have standing.
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This conclusion follows from ﬁrst principles of Article III standing doctrine and elementary laws of economics. It is also supported by Judge Messitte’s rigorous opinion in District of Columbia & Maryland v. Trump, which upheld competitor standing on materially identical facts. See No. 17-Civ-1596, 2018 WL 1516306, at *10–13, *15– 19 (D. Md. Mar. 28, 2018) (“D.C. v. Trump”). As Judge Messitte explained, “plaintiffs with an economic interest have standing to sue to prevent a direct competitor from receiving an illegal market beneﬁt leading to an unlawful increase in competition.” Id. at *11. That holding is fully applicable here.
A.   The competitor-standing doctrine allows plaintiffs to use economic logic to demonstrate Article III standing.
The competitor-standing doctrine is “well-established.” Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994). Courts rely on “economic logic to conclude that a plaintiff will likely suffer an injury-in-fact” when the defendant’s unlawful conduct increases competition or aids the plaintiff’s competitors. Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1332 (Fed. Cir. 2008); see also Clinton v. City of New York, 524 U.S. 417, 433 (1998) (“The Court routinely recognizes probable economic injury resulting from governmental actions that alter competitive conditions as sufﬁcient to satisfy the Article III ‘injury-in-fact’ requirement.”).
For competitor standing, a plaintiff need only “show that he personally competes in the same arena” with a party who beneﬁts from the defendant’s unlawful conduct. In re U.S. Catholic Conference (USCC), 885 F.2d 1020, 1029 (2d Cir. 1989). If
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that requirement is met, illegal acts that confer “some competitive advantage” on a plaintiff’s competitor—or that reshape the market in a manner harmful to the plaintiff—are held to satisfy Article III’s injury-in-fact requirement. Fulani, 882 F.2d at 626; see also Am. Inst. of Certiﬁed Pub. Accountants v. IRS, 804 F.3d 1193, 1197–98 (D.C. Cir. 2015); Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 192 (2d Cir. 1980).
Invoking this doctrine, courts have repeatedly upheld competitor standing when the government has unlawfully tilted the marketplace to a plaintiff’s disadvantage. See, e.g., Canadian Lumber, 517 F.3d at 1332 (government’s subsidization of only U.S. lumber); Adams, 10 F.3d at 921 (unlawful milk-pricing order); Fulani, 882 F.2d at 626 (IRS’s unlawful grant of tax-exempt status). Relying on the same economic logic, courts have upheld Article III standing when the illegal acts of private parties increased or distorted competition against a plaintiff. See, e.g., Philadelphia Taxi Ass’n, Inc v. Uber Techs., Inc., 886 F.3d 332, 346 (3d Cir. 2018) (antitrust violations by Uber); TrafﬁcSchool.com, 653 F.3d at 825 (unfair competition by website); Ross v. Bank of Am., N.A. (USA), 524 F.3d 217, 223 (2d Cir. 2008) (banks’ antitrust violations injuring cardholders); NicSand, Inc. v. 3M Co., 507 F.3d 442, 449 (6th Cir. 2007) (en banc) (sandpaper supplier’s antitrust violation); In re McCormick & Co. Pepper Prod. Mktg. & Sales Practices Litig., 215 F. Supp. 3d 51, 57 (D.D.C. 2016) (spice distributor’s Lanham Act violations). As these cases illustrate, although the doctrine originated in cases where the government controlled access to a market in which a plaintiff
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competed, it has since been applied in many other contexts. Thus, when a party acts illegally and thereby distorts competition, affected market participants may seek redress. See, e.g., Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 738 (5th Cir. 2016); Adams, 10 F.3d at 921–23.
In competitor cases, defendants often argue that market actors’ behavior is inherently too complex and dependent on third parties to support standing. But courts have uniformly held that this asks more of plaintiffs than the law requires. One court, for instance, has explained that a competitor plaintiff can show injury by describing “probable market behavior” and “creating a chain of inferences showing how defendant’s [illegal acts] could harm plaintiff’s business.” TrafﬁcSchool.com, 653 F.3d at 825. Inferential reasoning is proper here because “proving a counterfactual is never easy,” especially when “the injury consists of lost sales that are predicated on the independent decisions of third parties; i.e., customers.” Id.; see also NicSand, 507 F.3d at 449 (ﬁnding that 3M inﬂicted Article III injury on its competitor when it offered better—and allegedly illegal—deals to potential customers); cf. Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1391 (2014) (acknowledging that injury in Lanham Act cases involves an “intervening step of consumer deception,” but explaining that this third-party step “is not fatal”).
Similarly, defendants often assert that competitor plaintiffs lack standing because they cannot show exactly which customers they will lose as a result of illegal
29

competition. But courts have unequivocally rejected this argument, holding that a plaintiff need only “show an actual or imminent increase in competition, which increase we recognize will almost certainly cause an injury in fact.” Sherley, 610 F.3d at 73; accord La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998).
Thus, where the defendant’s unlawful conduct confers a beneﬁt on a plaintiff’s competitor, “it is presumed (i.e., without afﬁrmative ﬁndings of fact) that a boon to some market participants is a detriment to their competitors.” Canadian Lumber, 517 F.3d at 1334; see also Cooper, 820 F.3d at 738 (“It is a basic law of economics that increased competition leads to actual economic injury.”); Sherley, 610 F.3d at 72 (same). That’s why statistical evidence going into great depth about every possible causal chain in the relevant market is unnecessary, especially at the pleading stage. See Canadian Lumber, 517 F.3d at 1333. “Increased competition” is itself “a cognizable Article III injury.” Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 701 (D.C. Cir. 1994).
Of course, this rule is not without limits. Most important, the plaintiff must actually compete in the same arena as the defendant. See, e.g., USCC, 885 F.2d at 1029. Competitor standing thus does not apply when two parties are located hundreds of miles away from each other and there is, at best, a “vague probability” of competition, DEK Energy Co. v. FERC, 248 F.3d 1192, 1196 (D.C. Cir. 2001), or when a
30

party has merely thought about competing in a market but lacks concrete plans to do so, see New World Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002).
In general, though, courts take a broad view of what constitutes competition for purposes of standing. In a dispute between the Canadian Wheat Board and U.S. Customs, for instance, the court held that federal funding of a trade group that promotes (but doesn’t sell) competing goods can support competitor standing. See Canadian Lumber, 517 F.3d at 1334. More recently, the D.C. Circuit held that the Teamsters had standing to challenge a program allowing Mexico-domiciled trucks to operate in this nation, since the program would generally cause increased competition “throughout the United States.” Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp., 724 F.3d 206, 212 (D.C. Cir. 2013). And many other cases have warned against too narrow a view of “what qualiﬁes as participating in the . . . [relevant] market.” Mendoza v. Perez, 754 F.3d 1002, 1013 (D.C. Cir. 2014); see also Ctr. for Reprod. Law & Policy v. Bush, 304 F.3d 183, 197 (2d Cir. 2002) (Sotomayor, J.) (upholding standing under the analogous “competitive advocate standing” doctrine).
B.   Each plaintiff has competitor standing. Although the district court cited several decades-old competitor-injury cases, it did not properly apply this doctrine to the plaintiffs’ allegations or address the leading cases cited in support of standing. Instead, it relied on legal considerations
31

at odds with basic premises of the doctrine—and on factual speculation lacking any foundation in the plaintiffs’ allegations or the parties’ evidentiary submissions.
1.   Injury The district court recognized that the plaintiffs have suffered “competitive injury.” JA-335. And rightly so. Especially at the pleading stage, “[i]njury-in-fact is not Mount Everest.” Danvers Motor Co. v. Ford Motor Co.,432 F.3d 286, 294 (3d Cir. 2005). To establish Article III injury, the plaintiffs need only show that they compete in the same arena as the defendant and that his illegal acts have caused an “actual or imminent increase in competition.” Sherley, 610 F.3d at 73. That standard is satisﬁed here. In light of the plaintiffs’ detailed allegations and declarations—as well as the unrebutted expert testimony from Dr. Mueller and Professor Roginsky, JA-304–23, JA-275–84—it is reasonable to conclude that Goode, Phaneuf, and ROC “personally compete[] . . . in the same arena” with the President’s properties. USCC, 885 F.2d at 1029; see also D.C. v. Trump, 2018 WL 1516306, at *12 (“Plaintiffs have alleged sufﬁcient facts to show that the President’s ownership interest in the Hotel has had and almost certainly will continue to have an unlawful effect on competition, allowing an inference of impending (if not already occurring) injury.”). In the district court, the President challenged this conclusion by advancing a hyper-granular view of competition—one that would preclude any conclusions
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about which hotels or restaurants in the same city compete with each other. In comparing elite restaurants a few blocks apart, he even suggested that two versus three Michelin stars is an insurmountable difference. See ECF No. 99, at 18.
But that is not the law. Under Rule 12(b)(1), the question here is whether it is plausible to conclude that highly elite restaurants and hotels within walking distance of each other—and surrounded by foreign and domestic government ofﬁces—compete for government business. Given the many and varied circumstances under which courts have found competition in much larger and more diffuse markets, the answer to that question is yes. See Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 488 & n.4 (1998) (ﬁnding injury where the challenged conduct allowed persons in a national market who “might otherwise” patronize the plaintiff to instead patronize a competitor); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46 (1970) (allowing travel agents to challenge a rule allowing national banks to provide travel services, despite many other differences between banks and travel agencies); Am. Inst. of Certiﬁed Pub. Accountants, 804 F.3d at 1198 (applying “basic economic logic” to ascertain whether the plaintiffs competed with speciﬁc market participants, but not requiring proof that they offered identical services or even had the same customers).
Indeed, the plaintiffs here are far more obviously competitors. Whereas those cases involved national and international markets, this case drills all the way
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down to competition in speciﬁc and adjoining neighborhoods. As anyone who has ever chosen a restaurant in Manhattan knows, although there are thousands of options, the universe of potential choices shrinks dramatically once a price point, neighborhood, and quality level have been selected. JA-308–09 ¶18; Adams, 10 F.3d at 922 (“[T]he narrower the relevant marketplace . . . the greater the likelihood that a plaintiff will experience future economic loss as a consequence of the competitive advantage bestowed on its direct competitor.”). That is why these criteria are at the heart of most online reservation-booking systems, and why properties similar to each other in these respects inevitably compete. JA-277 ¶ 15. Accordingly, the only reasonable conclusion here is that top-tier, equivalently rated luxury hotels and restaurants located within 15–20 minutes of each other (and with similar price points) are competitors in the same arena. JA-277–78; JA-306–09. Any doubt on this point is dispelled by the unrebutted expert declarations.
The plaintiffs, moreover, have offered allegations that are more than sufﬁcient to demonstrate how the President’s illegal conduct has intensiﬁed and distorted competition. See TrafﬁcSchool.com, 653 F.3d at 825. President Trump has “used his ofﬁcial position as President to generate business to his hotel properties and their restaurants from ofﬁcials of foreign states, the United States, and/or state and local governments.” JA-68 ¶ 202. To facilitate such patronage, the President’s properties have hired staff solely to obtain governmental business. JA-37–38 ¶¶ 60–
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61. Partly as a result, many ofﬁcials have recently visited and hosted events at the President’s properties in New York and Washington. JA-38–41 ¶¶ 64–86, 109. In some instances, those ofﬁcials moved their events from other locations or effectively paid a premium rate for his goods and services, which now “provide a unique beneﬁt: access to, inﬂuence on, and the good will of the President.” JA-53 ¶¶ 150–52. That “unique beneﬁt” is available only to those who contribute to the President’s net worth, which he may easily learn of from news reports, private remarks, business updates, or encountering an ofﬁcial at his properties. JA-34, JA-38 ¶¶ 44, 62.
In short, although bound by the Emoluments Clauses, the President has repeatedly accepted emoluments from government ofﬁcials. Further, he has done so openly and notoriously, ensuring that ofﬁcials keen to confer ﬁnancial beneﬁts on the President know how (and where) to do so. JA-33–53 ¶¶ 42–152. At the same time, he has closely linked his presidency to his properties, visiting them regularly and conducting ofﬁcial business there. See Bump, Trump has visited a Trump-branded property every 2.8 days of his presidency, Wash. Post, Apr. 8, 2017. The President has thus not only violated the Emoluments Clauses, but has done so in an exceptionally public manner, adopting practices that give foreign and domestic ofﬁcials a powerful incentive to patronize his properties in hopes of winning his affection.
The President’s illegal conduct thereby tilts the competitive ﬁeld in favor of his properties and against their competitors. See Cooper, 820 F.3d at 738 (explaining
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the “‘basic law of economics’ that increased competition leads to actual economic injury”). The plaintiffs can offer outstanding goods and services. But what they can’t offer is the opportunity to privately beneﬁt the President of the United States, with all the real or perceived advantages that might result from openly helping to enrich him. And as we explain below, it is no great leap to conclude that domestic and foreign ofﬁcials might see that opportunity as a salient consideration when deciding where to take their business in New York and Washington.
2.   Causation In a competitor-standing case, the relevant injury is exposure to intensiﬁed competition, which is presumed to result in harm. See Sherley, 610 F.3d at 73; Canadian Lumber, 517 F.3d at 1334; Cooper, 820 F.3d at 738. Logically, that presumption incorporates the causal chain necessary to satisfy traceability and redressability: Because it is a law of economics that increased competition causes injury, exposure to increased competition as a result of unlawful acts will satisfy the Article III injury requirement, and a command to cease the unlawful acts that caused the increased competition in the ﬁrst place will redress the injury. For this reason, courts rarely belabor traceability and redressability analysis in competitor cases. See Int’l Bhd. of Teamsters, 724 F.3d at 212 (emphasizing that the “causation and redressability requirements of Article III standing are easily satisﬁed” where, absent the defendant’s actions, “members of these groups would not be subject to increased competition”);
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see also Chrysler Grp. LLC v. Fox Hills Motor Sales, Inc., 776 F.3d 411, 430–31 (6th Cir. 2015); Cooper, 820 F.3d at 738; Sherley, 610 F.3d at 72; Fulani, 882 F.2d at 628.
Here, however, the district court concluded that the plaintiffs failed to show causation. To support this view, it speculated—without citing any allegations or evidence—that the plaintiffs’ “loss of business” may result from “government ofﬁcials’ independent desire to patronize Defendant’s businesses,” which has “generally increased since he became President.” JA-336. The district court added that even apart from President’s violations of the Emoluments Clauses, “the Hospitality Plaintiffs may face a tougher competitive market overall.” Id.
This reasoning rests on multiple errors. To start, it mischaracterizes the nature of the injury that is traceable to the President’s illegal conduct. The plaintiffs do not argue that their only injury is “loss of business” from speciﬁc, identiﬁable customers. See Sherley, 610 F.3d at 73. Nor do they contend that they have suffered injury-in-fact from any and all increases in competition that have occurred since the election. Rather, the plaintiffs base their claims on the injury of increased competition for governmental business resulting speciﬁcally from the President’s acceptance of emoluments. See D.C. v. Trump, 2018 WL 1516306, at *11.
Accordingly, the key question here is whether the plaintiffs have plausibly alleged under Rule 12(b)(1) that the President’s receipt of emoluments has intensiﬁed or distorted competition for governmental business. If so, that injury is traceable to
37

the President’s illegal conduct. And for three reasons, this is the correct conclusion. See D.C. v. Trump, 2018 WL 1516306, at *16.
First, the plaintiffs have alleged that some governmental ofﬁcials now prefer the President’s properties because they can confer emoluments on him by going there. See id. (“Their allegation is bolstered by explicit statements from certain foreign government ofﬁcials indicating that they are clearly choosing to stay at the President’s Hotel.”). For example, one foreign diplomat openly declared, “Believe me, all the delegations will go there,” and another echoed the same sentiment: “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’” JA-38 ¶ 62.
Further, numerous foreign ofﬁcials have openly admitted that the opportunity to “spend[] money” at the President’s properties has led them to patronize his hotels. See O’Connell & Jordan, For foreign diplomats, Trump hotel is place to be (“In interviews with a dozen diplomats . . . some said spending money at Trump’s hotel is an easy, friendly gesture to the new President.”). And experts on diplomatic behavior have repeatedly conﬁrmed that the opportunity to ﬁnancially beneﬁt the President will matter to some foreign ofﬁcials when deciding where to take their business. See Paddock et al., Potential Conﬂicts Around the Globe for Trump, the Businessman President, N.Y. Times, Nov. 26, 2016 (former State Department expert warning that “foreign government ofﬁcials” will favor “doing business with the Trump
38

organization” to “ingratiate themselves with the Trump administration”); Helderman & Hamburger, Trump’s presidency, overseas business deals and relations with foreign governments could all become intertwined, Wash. Post (Nov. 25, 2016) (expert on former Soviet states warning that ofﬁcials from corrupt regimes will seek to exploit “[t]he gray areas Trump has between where his job as president ends and where his business interests begin”); O’Connell & Jordan, For foreign diplomats, Trump hotel is place to be (quoting a former Mexican ambassador as observing that “the temptation and the inclination will certainly be there”).
Second, the President himself has made public statements strongly implying that his view of foreign nations is linked to how they treat his private businesses. See D.C. v. Trump, 2018 WL 1516306, at *16. These statements encourage ofﬁcials to view the opportunity to beneﬁt the President as a reason to prefer his properties over competitors. For instance, the President stated during his campaign, “I love China! The biggest bank in the world is from China. You know where their United States headquarters is located? In this building, in Trump Tower.” JA-35–36 ¶ 51. The President made similar statements about Saudi Arabia: “I get along great with all of them. They buy apartments from me.” JA-42 ¶ 96. He added: “They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much.” Id. That same year, he remarked that “I have a little conﬂict of interest because I have a major, major building in Istanbul.” Paddock, Potential Conﬂicts.
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Finally, it is consistent with the core premises of the Emoluments Clauses to infer that the opportunity to enrich the president will affect decisionmaking by governmental ofﬁcials. These Clauses were designed on the assumption that foreign powers and domestic ofﬁcers would actively try to gain inﬂuence over the president through ﬁnancial inducements. See 3 Farrand, The Records of the Federal Convention of 1787, at 327; The Federalist No. 73 (Hamilton). And in the vast universe of potentially corrupting transactions, the Framers targeted personal ﬁnancial beneﬁts as uniquely capable of swaying federal ofﬁcers. Their reasons for doing so are no less true today than they were in the 1780s. It would therefore be surprising if ofﬁcials didn’t view the opportunity to enrich the President as relevant to their decisions regarding which otherwise comparable businesses to patronize.
The district court did not address any of this. Nor did it evaluate the plaintiffs’ factual allegations bearing on traceability or distinguish any of the competitor precedents cited above. Instead, it relied on a decades-old case that predates the competitor-standing doctrine. There, the plaintiffs offered only “unadorned speculation” that the conferral of a government beneﬁt on a third party—who was not a competitor—would cause them harm. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 44 (1976).
That reliance was misplaced. The plaintiffs do not offer mere guesswork about the conduct of third parties. Rather, consistent with decades of precedent,
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they invoke laws of economics holding that the conferral of an illegal advantage on a competitor in the same marketplace causes injury. As Judge Messitte has explained: “When the injury is the loss of an opportunity to fairly compete . . . the presence of third party actors in the marketplace has been found not to destroy traceability. The more relevant question, then, is whether the increase of competition can be fairly traced through the third party’s intervening action back to the President.” D.C. v. Trump, 2018 WL 1516306, at *16. Here, the plaintiffs have offered overwhelming allegations and evidence that they compete with the President’s properties—and that the President’s illegal conduct creates an additional, distinct incentive for government ofﬁcials to prefer his hotels and restaurants. Under settled standing doctrine, those allegations more than sufﬁce to satisfy Article III’s causation requirement. See e.g., TrafﬁcSchool.com, 653 F.3d at 825.
3.   Redressability The President is engaging in illegal conduct that makes patronizing his hotels and restaurants more attractive to governmental ofﬁcials. Businesses that compete with those properties therefore face intensiﬁed competition with respect to that class of customers. This competitive injury is directly traceable to his unlawful acts and would be redressed if the court were to grant the plaintiffs’ requested relief. The district court, however, concluded otherwise. Without discussing any of the plaintiffs’ allegations or evidence, and without citing any cases, it speculated
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that “Plaintiffs are likely facing an increase in competition in their respective markets for business from all types of customers—government and non-government customers alike—and there is no remedy this Court can fashion to level the playing ﬁeld for Plaintiffs as it relates to overall competition.” JA-337. The district court added that an order prohibiting the President from violating the Emoluments Clauses still would “not prohibit Defendant’s businesses from competing directly with the [plaintiffs].” Id. It thus opined that “while a court order enjoining Defendant may stop his alleged constitutional violations, it would not ultimately redress the Hospitality Plaintiffs’ alleged competitive injuries.” Id.
This reasoning is mistaken. To start, the behavior of non-government customers is irrelevant; the only question here is whether the President’s illegal conduct has distorted competition for governmental business. And with respect to those customers, the plaintiffs do not seek to “level the playing ﬁeld” of “overall competition.” Id. Nor do they seek to halt the President’s businesses from competing with them at all. Id. They seek only an order to stop the President from illegally conferring a competitive advantage on his properties by accepting emoluments. See D.C. v. Trump, 2018 WL 1516306, at *18 (“The ultimate issue is not a ﬂat prohibition against such patronage by foreign or domestic states, but whether ‘to some extent’ their incentive to cater to the President will be reduced if he can no longer receive the beneﬁts
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which, through the Hotel, he currently derives.”). If this improper incentive is removed from the marketplace, the plaintiffs’ injury will be redressed.
It is immaterial that some government ofﬁcials might continue to patronize the President’s properties even if the President were to disentangle himself from his businesses that are accepting emoluments. JA-337, JA-342 (Op. 19 & n.3); see also D.C. v. Trump, 2018 WL 1516306, at *18 (“[I]t is true that the Court cannot prevent any and all third party foreign or domestic government actors from patronizing the Hotel, but that continues to miss the point.”). There’s no denying that, even if the plaintiffs received all the relief they seek, some ofﬁcials could continue to favor the President’s hotels to show brand loyalty to him, or to enrich his adult children, or for legitimate competitive reasons. But it is settled that a plaintiff “need not show that a favorable decision will relieve his every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982); see also Massachusetts v. E.P.A., 549 U.S. 497, 526 (2007) (redressability where “risk of catastrophic harm” could be “reduced to some extent if petitioners received the relief they seek”). And here, the plaintiffs have reasonably established that the President’s acceptance of emoluments has injured them by placing a distinct, illegal thumb on the competitive scales. See Sherley, 610 F.3d at 72 (“[A] seller facing increased competition may lose sales to rivals, or be forced to lower its price or to expend more resources to achieve the same sales.”). Because their
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requested relief would redress this injury—and help restore the competitive balance—the plaintiffs have shown redressability.
Finally, the district court held that the plaintiffs could not show redressability because “Congress could still consent and allow Defendant to continue to accept payments from foreign governments in competition with Plaintiffs.” JA-337. This analysis does not withstand scrutiny.
First, unlike the Foreign Emoluments Clause, the Domestic Emoluments Clause does not permit Congress to authorize transactions by consenting to them. The district court’s reasoning is therefore inapplicable to half of the plaintiffs’ case.
And second, the Constitution makes clear that acceptance of foreign emoluments is illegal unless Congress afﬁrmatively says otherwise. Since Congress has not given its consent, the President’s conduct here is unlawful, and the mere possibility of congressional consent at some future point does not mean that a court order would fail to redress the ongoing injuries that support the plaintiffs’ standing under Article III. Indeed, that reasoning explains why federal courts have long adjudicated challenges under other provisions that, like the Foreign Emoluments Clause, permit Congress to authorize otherwise-illegal conduct by consenting to it. See, e.g., Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. 1, 6 (2009) (Tonnage Clause); C&A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 408 (1994) (Dormant Commerce Clause); Cuyler v. Adams, 449 U.S. 433, 439 (1981) (Compact Clause); Dep’t of Revenue v.
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James B. Beam Distilling Co., 377 U.S. 341, 344 (1964) (Import/Export Clause). The
judicial power to provide redress for injury caused by illegal conduct does not
dissipate whenever it is conceivable that other circumstances in the world might, at
some point, alleviate that same injury. See Litman & Hemel, On the Ripeness of Potted
Plants and Other Non Sequiturs, Take Care (Dec. 22, 2017) (explaining that if the district
court were correct, no plaintiff could ever challenge “executive action that exceeds
the scope of congressionally delegated authority, or executive action that violates a
statutory prohibition,” since “Congress could have authorized the action, but
didn’t”).10
II.   The zone-of-interests test does not bar the plaintiffs’ claims. The district court also held that, even if the plaintiffs have Article III stand-
ing, they lack “prudential” standing because their injuries “do not fall within the
zone of interests of the Emoluments Clauses.” JA-338. That is incorrect: the zone-
of-interests test poses no barrier here.11
10 ROC has associational standing under Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977), because (1) at least one of its members has standing in its own right; (2) its interests are germane to its mission, JA-286–87 ¶ 7, and (3) individual participation isn’t necessary because “the organization seeks a purely legal ruling,” with no “individualized relief.” Bldg. & Constr. Trades Council v. Downtown Dev., Inc., 448 F.3d 138, 150 (2d Cir. 2006).
11 Although the district court indicated that the test is part of “prudential standing,” the Supreme Court has “found that label inapt”—making clear that the test is neither a matter of prudence nor a question of standing. Lexmark Int’l, 134 S. Ct. at 1387 & n.3. But, however it’s categorized, this test does not bar the plaintiffs’ claims.
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“As the name implies, the zone of interests test turns on the interest sought to be protected, not the harm suffered by the plaintiff.” Yakima Valley Mem’l Hosp. v. Wash. State Dep’t of Health, 654 F.3d 919, 932 (9th Cir. 2011). This test “is not meant to be especially demanding.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). Plaintiffs need only show that the interests they seek to vindicate “‘arguably’ fall within the zone of interests” protected by the legal provision they’ve invoked. Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1301 (2017). The Supreme Court has “always conspicuously included the word ‘arguably’ in the test to indicate that the beneﬁt of any doubt goes to the plaintiff.” Patchak, 567 U.S. at 225. “The test forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the [legal provision]’” that the claim is impermissible. Id.
The plaintiffs’ claims easily meet that standard. For starters, neither the Supreme Court nor this Court has dismissed a case on zone-of-interest grounds where the plaintiffs sought only to prevent the violation of a structural provision of the Constitution and had Article III standing to do so. To the contrary, the Supreme Court has long allowed private parties—like the plaintiffs here—to seek equitable relief in such circumstances. See, e.g., Am. Ins. Co. v. Garamendi, 539 U.S. 396 (2003) (foreign relations); INS v. Chadha, 462 U.S. 919 (1983) (bicameralism and presentment); U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978) (Compact Clause); Hill v. Wallace, 259 U.S. 44 (1922) (Commerce Clause). In fact, these kinds of suits
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“have been the principal source of judicial decisions concerning separation of
powers and checks and balances.” Bond, 564 U.S. at 222 (collecting cases).12
There is a reason that none of these cases has ever been thought to pose a
zone-of-interests problem. The “structural principles secured” by the Constitution
are not just ends in themselves; they exist to “protect the individual as well.” Id.
Federalism, for example, protects “all persons within a State by ensuring that laws
enacted in excess of delegated governmental power cannot direct or control their
actions.” Id. Separation-of-powers principles, too, serve more than systematic or
architectural goals: “separation of powers can serve to safeguard individual liber-
ty.” N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 2559 (2014); see Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 498–501 (2010). Recognizing this fact does not
mean that anyone may sue to vindicate these interests. Article III’s requirements root
12 It is doubtful that the zone-of-interests test applies to such cases at all. Only once has the Court applied the test to a constitutional claim—40 years ago, in a footnote permitting a dormant Commerce Clause claim to proceed. See Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320–321, n.3 (1977). It is unclear whether “that decision was simply anomalous” or if there is actually a “prudential” test “in the constitutional context.” Ass’n of Battery Recyclers, Inc. v. E.P.A., 716 F.3d 667, 676 n.3 (D.C. Cir. 2013) (Silberman, J., concurring); see also Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 811 n.14 (D.C. Cir. 1987). On those rare occasions that courts have applied the test in constitutional litigation (involving rights-conferring provisions or interstate-commerce protections), the approach has closely resembled third-party standing analysis. See Ctr. for Reprod. Law & Policy, 304 F.3d at 196 (“Plaintiffs cannot make their First Amendment claims actionable merely by attaching them to a third party’s due process interests.”); Maher Terminals, LLC v. Port Auth. of N.Y. & N.J., 805 F.3d 98, 105, 108–09 (3d Cir. 2015) (dismissing Tonnage Clause claim because a plaintiff “cannot assert the rights of third-party vessels”). Here, the plaintiffs seek to vindicate their own interests—not those of third parties.
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out abstract claims and generalized grievances. But the Court has made clear that, “[i]f the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object,” and courts may “adjudicate [the] claim.” Bond, 564 U.S at 220, 223.
This case is no exception. The Emoluments Clauses are structural provisions that deﬁne how federal ofﬁceholders may (and may not) interact with foreign powers, states, and other institutions of the national government. The Foreign Emoluments Clause broadly forbids federal ofﬁcials from accepting any “emolument” “of any kind whatever” from any foreign state, while giving Congress the power to consent. And the Domestic Emoluments Clause forbids the president from accepting any proﬁt or gain from states or the federal government, beyond a ﬁxed salary and beneﬁts. Together, these Clauses guard against “every kind of inﬂuence by foreign governments,” 24 Op. Att’y Gen. 116, 117 (1902), and prevent the president from being exposed to any “pecuniary inducement” to betray “the independence intended for him by the Constitution,” The Federalist No. 73 (Hamilton). In other words, they ensure that the president will not seek to proﬁt from his ofﬁce by accepting governmental payments. Like other structural provisions, the Emoluments Clauses seek to achieve systematic goals (preventing corruption, tempering foreign inﬂuence, respecting federalism)—and thereby to protect individuals from the personal harms that inevitably result when these principles of our constitutional
48

order are violated. See Shugerman & Rao, Emoluments, Zones of Interests, and Political Questions, 45 Hastings Const’l L. Quarterly 651, 657–663 (2018) (tracing history of the Clauses’ anti-corruption purposes for zone-of-interests analysis).
The interests asserted by the plaintiffs are directly tied to these concerns. The plaintiffs allege that President Trump is using his tenure in ofﬁce as an opportunity to enrich himself by accepting ﬁnancial beneﬁts from foreign and domestic governments at his properties. The plaintiffs further allege that the President’s gain has been their loss. Accordingly, their interests in preventing his unlawful proﬁteering—which has come at their direct expense—are not “marginally related to or inconsistent with the purposes” of the Emoluments Clauses. Patchak, 567 U.S. at 225. To the contrary, they evoke the very core of these provisions. If a non-citizen may enforce the requirements of bicameralism and presentment (as in Chadha), and a vengeful, spurned lover may enforce the Tenth Amendment (as in Bond), then a business that suffers direct competitive harm from the President’s unlawful acceptance of emoluments may assert a claim under the Emoluments Clauses.
The district court’s holding to the contrary is based on a fundamental misunderstanding of the zone-of-interests test and the nature of the plaintiffs’ interests. As to the former, the district court seemed to the think that the operative framework is supplied by Wyoming v. Oklahoma, 502 U.S. 437 (1992). But the district court cited only Justice Scalia’s dissent in that case, not the majority opinion. JA-338.
49

And even that dissent explained that the test’s purpose is to limit damages—a purpose that isn’t implicated here. See Wyoming, 502 U.S. at 473.
As to the plaintiffs’ interests, the district court reasoned that the Clauses cannot protect against “increased competition in the market for government business” because they “offer no protection from increased competition in the market for nongovernment business,” and because Congress may consent. JA-340. As with the court’s Article III analysis, this reasoning is mistaken. Just because the Clauses allow the President to accept some emoluments (from non-government actors and from foreign governments if Congress consents) does not mean that he may accept any emoluments. In fact, the opposite is true. And here, the harm that the plaintiffs seek to remedy—and the interests they seek to vindicate—are directly tied to his acceptance of those prohibited emoluments. Nothing more is needed. See Patchak, 567 U.S. at 225; Clarke, 479 U.S. at 399. III.   There are no prudential barriers to standing.
Despite concluding that the plaintiffs lack standing—and thus that it lacks jurisdiction—the district court reached out to decide two issues not raised by the President: the political-question doctrine and ripeness. Its advisory opinion on these issues was not only unnecessary but incorrect.
50

A.   The political-question doctrine does not bar this suit. In recent years, the Supreme Court has repeatedly emphasized that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unﬂagging.” Driehaus, 134 S. Ct. at 2347 (2014). “[C]ourts cannot avoid their responsibility merely because the issues have political implications.” Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012). This command extends even to politically sensitive disputes that the judiciary “would gladly avoid.” Id. at 194. The political-question doctrine creates a “narrow exception” to that rule. Id. at 195. Courts lack the authority to decide disputes “where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.’” Id.; see also Baker v. Carr, 369 U.S. 186, 217 (1962) (identifying four additional factors, none of which played any role in Zivotofsky, the Court’s most recent decision in this ﬁeld). Here, the district court concluded that the plaintiffs’ case must be dismissed on political-question grounds. JA-349. It reasoned that “the explicit language of the Foreign Emoluments Clause” makes clear that “this is an issue committed exclusively to Congress.” Id. In the district court’s view, “as the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Con-
51

gress is the appropriate body to determine whether, and to what extent, Defendant’s conduct unlawfully infringes on that power.” Id.
This analysis is inapplicable to the plaintiffs’ claims under the Domestic Emoluments Clause. That Clause includes no congressional-consent provision. As for the Foreign Emoluments Clause, the district court’s reasoning is at odds with constitutional text and structure. Giving the Clause its plain meaning, the “consent of Congress” provision simply makes clear that without congressional approval, it is illegal for certain federal ofﬁcers to accept any foreign emoluments. The placement of this power in Article I makes perfect sense on the premise that the Foreign Emoluments Clause is judicially enforceable: Congress is explicitly empowered to exempt federal ofﬁcials from potential liability in court.
But the “Consent of Congress” provision makes little sense if the Foreign Emoluments Clause can be enforced solely by Congress. In that case, legislators do not need to “consent” to an ofﬁcial’s receipt of foreign emoluments in order to validate them; rather, all they need do is nothing. As a practical matter, there would be no requirement of formal congressional action to approve particular foreign emoluments. Nor would the president be obliged to afﬁrmatively submit foreign emoluments to Congress for approval; instead, Congress would be forced to aggressively and proactively monitor the president’s private dealings, forbidding or approving emoluments as it found them (assuming he did not conceal his records).
52

This interpretation would invert the structure and anti-corruption purpose of the
Foreign Emoluments Clause, which makes clear that all foreign emoluments are
illegal until Congress explicitly says that they are not.
The result of that interpretation is a major re-writing of the clause:
[N]o Any Person holding any Ofﬁce of Proﬁt or Trust under [the United States], shall, without the Consent of the Congress, may accept of any present, Emolument, Ofﬁce, or Title, of any kind whatever, from any King, Prince, or foreign State, unless Congress subsequently denies Consent.
Ultimately, in this case as in so many others, Congress’s raw authority to act and
authorize does not mean that its inaction precludes a judicial accounting of illegal
conduct. So long as Congress remains silent, the President is breaking the law by
accepting emoluments, and injured parties may seek redress in federal court.
That conclusion is conﬁrmed by precedent addressing other provisions that
provide for congressional consent. Consider Article I, Section 10, Clauses 2 and 3:
Cl. 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports . . .
Cl. 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
53

(emphasis added). Here, too, the Constitution prohibits a particular governmental actor from engaging in speciﬁc conduct—unless Congress consents. But no court has ever held that these clauses create political questions. To the contrary, federal courts have long adjudicated cases arising under these constitutional provisions. See, e.g., Polar Tankers, 557 U.S. at 6; Cuyler, 449 U.S. at 439; James B. Beam Distilling Co., 377 U.S. at 344. Similarly, courts have adjudicated cases under the Dormant Commerce Clause, even though congressional consent could cure any violation by a state government. See C&A Carbone, Inc., 511 U.S. at 408.
Precedent is also instructive in another respect: it shows what an actual textual commitment to the political branches looks like. And the answer is: not like the Foreign Emoluments Clause. Nixon v. United States is instructive. There, the Supreme Court found a textual commitment because the Impeachment Clause vests the “sole Power to try all Impeachments” in the Senate, allowing no role for the Judiciary. 506 U.S. 224, 229–231 (1993). That is what it means for the Constitution to give only one branch power over an issue. The consent provision in the Foreign Emoluments Clause has a fundamentally different purpose. Rather than preclude judicial adjudication of violations, it speciﬁes circumstances in which Congress can create exceptions to the underlying rule.
Accordingly, as a matter of text, structure, and precedent, the district court erred in holding that the plaintiffs’ claims pose non-justiciable political questions.
54

B.   The plaintiffs’ claims are ripe. Finally, the district court concluded that the plaintiffs’ Foreign Emoluments Clause claims are “not ripe.” JA-350. It thus held that these claims must be dismissed even if they do not present a political question and even if the plaintiffs have Article III standing. The court reached this surprising conclusion—which the President did not urge below—on the theory that the claims cannot be ripe “unless and until” Congress decides “to confront the defendant over a perceived violation of the Foreign Emoluments Clause.” JA-351. At no point did the court explain how this analysis even arguably applies to the plaintiffs’ claims under the Domestic Emoluments Clause, which does not contemplate congressional consent. More important, the district court fundamentally mischaracterized how the Foreign Emoluments Clause works. As we have explained, the Clause prohibits federal ofﬁceholders from accepting emoluments from foreign governments unless Congress grants consent. Congress has not given its consent here. Ergo, the President is violating the Clause. On a correct understanding of the Constitution, the timeliness of the plaintiffs’ claims does not turn on any “contingent future events.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985). The plaintiffs have a claim now. And they will continue to have a claim irrespective of whether Congress chooses to “confront” the President and express disapproval of his acceptance of emoluments.
55

Only if Congress afﬁrmatively authorizes his receipt of foreign emoluments—and does so going forward—would our claims be affected. But in that event, dismissal would be warranted because the violations would have been cured and the allegations rendered moot; it would still be improper to conclude that the plaintiffs’ claims are not ripe.
Far from being premature, the plaintiffs’ claims present an issue in urgent need of judicial review. Faced with ﬂagrant, ongoing violations of the Constitution—violations causing them personal, economic injury—the plaintiffs are not required to wait and see if Congress takes action. Indeed, it would be especially unfair to impose that requirement where the President has actively thwarted congressional review by concealing the full scope of his unlawful conduct. Simply put, the plaintiffs’ claims have been ripe since the President’s ﬁrst days in ofﬁce. They remain ripe today. And this Court should therefore remand and instruct the district court to decide them on the merits.
CONCLUSION The judgment of the district court should be reversed.
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April 24, 2018
NORMAN L. EISEN* STUART C. MCPHAIL* ADAM J. RAPPAPORT* Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W. Washington, DC 20001 (202) 408-5565

Respectfully submitted,
/s/ Deepak Gupta DEEPAK GUPTA JONATHAN E. TAYLOR JOSHUA MATZ DANIEL TOWNSEND* Gupta Wessler PLLC 1900 L Street, N.W. Washington, DC 20009 (202) 888-1741 deepak@guptawessler.com

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767

JOSEPH M. SELLERS DANIEL A. SMALL Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Washington, DC 20005 (202) 408-4600 jsellers@cohenmilstein.com

Counsel for Plaintiffs-Appellants *Second Circuit admission pending

57

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Local Rule 32.1(a)(4) because this brief contains 13,617 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). This brief complies with the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word 2016 in 14-point Baskerville font.

April 24, 2018

/s/ Deepak Gupta Deepak Gupta Counsel for Plaintiffs-Appellants

CERTIFICATE OF SERVICE I hereby certify that on April 24, 2018, I electronically ﬁled the foregoing brief with the Clerk of the Court for the U.S. Court of Appeals for the Second Circuit by using the CM/ECF system. All participants are registered CM/ECF users, and will be served by the appellate CM/ECF system.
/s/ Deepak Gupta Deepak Gupta

58

 
 No. 18-474
IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF,
ERIC GOODE,
Plaintiffs-Appellants,
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES OF AMERICA,
Defendant-Appellee.
On Appeal from the United States District Court for the Southern District of New York
BRIEF FOR APPELLEE PRESIDENT DONALD J. TRUMP
CHAD A. READLER Acting Assistant Attorney General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MICHAEL S. RAAB MEGAN BARBERO
Attorneys, Appellate Staff Civil Division, Room 7226 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 532-4631

TABLE OF CONTENTS

Page

INTRODUCTION ..................................................................................................................1

STATEMENT OF JURISDICTION ...................................................................................4

STATEMENT OF THE ISSUES..........................................................................................4

STATEMENT OF THE CASE.............................................................................................4

A. The Emoluments Clauses.................................................................................4

B. The Parties ..........................................................................................................5

C. Prior Proceedings...............................................................................................7

SUMMARY OF ARGUMENT........................................................................................... 10

STANDARD OF REVIEW ................................................................................................ 12

ARGUMENT ......................................................................................................................... 13

I.

PLAINTIFFS LACK ARTICLE III STANDING TO BRING THEIR CLAIMS

UNDER THE EMOLUMENTS CLAUSES ...................................................................... 13

A. Standing Is Fundamental To Article III’s Case-Or-Controversy Requirement And Cannot Be Satisfied By Speculative Allegations.........13

B. The Hospitality Plaintiffs Lack Article III Standing...................................18

1. Non-hospitality-related violations .....................................................19

2. Lost business from foreign or domestic governments at hotels and restaurants in New York City and Washington,
D.C. ........................................................................................................21

3. Competitor-standing doctrine............................................................29

II. THE PLAINTIFFS’ ASSERTED INJURIES DO NOT FALL WITHIN THE ZONE OF INTERESTS OF THE EMOLUMENTS CLAUSES ................................................... 34

A. The Zone-Of-Interests Requirement Bars Plaintiffs From Relying Upon Injuries That Are Too Attenuated From The Purposes Of The Legal Provision Upon Which Their Claim Is Based ..........................34
B. The Emoluments Clauses Are Not Even Arguably Intended To Protect Against Commercial Competition From Businesses In Which Federal Officers Happen To Have A Financial Interest ..............35
C. The Zone-Of-Interests Test Fully Applies To Claims Under The Emoluments Clauses .......................................................................................38
CONCLUSION ..................................................................................................................... 43 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM
ii

TABLE OF AUTHORITIES

Cases:

Page(s)

Adams v. Watson, 10 F.3d 915 (1st Cir. 1993).......................................................................................... 30, 32

Allco Fin. Ltd. v. Klee, 805 F.3d 89 (2d Cir. 2015) ....................................................................................15, 22, 27

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ........................................................................................................ 31, 32

Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140 (2d Cir. 2011) ...............................................................................................13

In re Appointment of Indep. Counsel, 766 F.2d 70 (2d Cir. 1985) .......................................................................................... 34, 38

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015).........................................................................................................42

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .............................................................................................................13

Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003) ...............................................................................................13

Bond v. United States, 564 U.S. 211 (2011) .............................................................................................................39

Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318 (1977) ...................................................................................................... 38, 39

Canadian Lumber Trade All. v. United States, 517 F.3d 1319 (Fed. Cir. 2008)..........................................................................................30

Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469 (5th Cir. 2013) ....................................................................................... 38, 39

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ......................................................................................... 14, 15, 18, 22

iii

Clarke v. Securities Indus. Ass’n, 479 U.S. 388 (1987) ................................................................................................34, 35, 42
Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411 (2d Cir. 2015) ........................................................................................ 12, 13
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ...................................................................................................... 14, 15
Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) ...............................................................................................28
District of Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md. 2018) ..................................................................................21
El Paso Nat. Gas Co. v. FERC, 50 F.3d 23 (D.C. Cir. 1995)............................................................................ 30, 31, 32, 33
Franklin v. Massachusetts, 505 U.S. 788 (1992) .............................................................................................................35
Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010) .............................................................................................................43
Garelick v. Sullivan, 987 F.2d 913 (2d Cir. 1993) ..................................................................................16, 17, 26
Henderson v. Stalder, 287 F.3d 374 (5th Cir. 2002)..............................................................................................29
Individuals for Responsible Gov’t, Inc. v. Washoe Cty. ex rel. Bd. of Cty. Comm’rs, 110 F.3d 699 (9th Cir. 1997) ....................................................................................... 38, 39
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................................................................1, 14, 15
Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) ...................................................................................................... 34, 41
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .............................................................................................17
iv

Massachusetts v. Microsoft Corp., 373 F.3d 1199 (D.C. Cir. 2004) .........................................................................................42
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) ...................................................................................................... 34, 35
Michigan Corr. Org. v. Michigan Dep’t of Corr., 774 F.3d 895 (6th Cir. 2014)..............................................................................................43
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) ........................................................................................ 42, 43
New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002) ...........................................................................................31
Port Wash. Teachers’ Ass’n v. Board of Educ. of Port Wash. Union Free Sch. Dist., 478 F.3d 494 (2d Cir. 2007) ...............................................................................................15
Raines v. Byrd, 521 U.S. 811 (1997) ...................................................................................................... 18, 33
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) .............................................................................................................41
Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994)....................................................................................................33
Selevan v. New York Thruway Auth., 584 F.3d 82 (2d Cir. 2009) .................................................................................................39
Sherley v. Sebelius, 610 F.3d 69 (D.C. Cir. 2010) .............................................................................................30
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976) ..................................................................................................14, 16, 26
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)............................................................................................14, 15, 18
State Nat’l Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015) ...................................................................................... 31, 33
v

Summers v. Earth Island Instit., 555 U.S. 488 (2009) .......................................................................................................... 1, 3
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ...........................................................................................43
Texas v. United States, 787 F.3d 733 (5th Cir. 2015)..............................................................................................29
Thompson v. North Am. Stainless, LP, 562 U.S. 170 (2011) .............................................................................................................40
Town of Babylon v. Federal Hous. Fin. Agency, 699 F.3d 221 (2d Cir. 2012) ...............................................................................................17
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).................................................................................................. 13, 14
TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) ....................................................................................... 30, 32
United States v. Richardson, 418 U.S. 166 (1974) .............................................................................................................42
In re U.S. Catholic Conference (USCC), 885 F.2d 1020 (2d Cir. 1989) ................................................................................29, 33, 42
Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ...................................................................................17, 18, 34, 38, 41
W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100 (2d Cir. 2008) ........................................................................................ 13, 25
Warth v. Seldin, 422 U.S. 490 (1975) .............................................................................................................35
Wyoming v. Oklahoma, 502 U.S. 437 (1992) ...................................................................................................... 35, 42
vi

Constitution: U.S. Const.:
Art. I, § 9, cl. 7 .....................................................................................................................41 Art. I, § 9, cl. 8 ................................................................................................................ 4, 42 Art. II, § 1, cl. 7......................................................................................................................4 Art. III, § 2, cl. 1 ..................................................................................................................13 Statutes: 28 U.S.C. § 1291 ........................................................................................................................4 28 U.S.C. § 1331 ........................................................................................................................4 Other Authorities: Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017), https://www.nytimes.com/2017/01/11/ us/politics/trump-press-conference-transcript.html................................................ 8, 27 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. 1854) ...............................................................................36 The Federalist No. 73 (Jacob E. Cooke ed., 1961) ................................................................36 Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United (2014) .......................................................................................................36
vii

INTRODUCTION Plaintiffs-appellants Restaurant Opportunities Centers United, Inc. (ROC United), Jill Phaneuf, and Eric Goode (collectively, the hospitality plaintiffs) ask this Court to hold that they have judicially cognizable interests allowing them to pursue claims that President Donald J. Trump is violating the Foreign and Domestic Emoluments Clauses of the Constitution because, among other things, he holds a financial interest in hotels and restaurants patronized by foreign or domestic government officials. This Court should affirm the district court’s judgment dismissing their claims as non-justiciable. As an initial matter, the hospitality plaintiffs fail to establish Article III standing by alleging that they are injured as a result of an increase in competition for foreign or domestic government business at their hotels, restaurants, and event planning services. Standing “is not ‘an ingenious academic exercise in the conceivable’ . . . but requires . . . a factual showing of perceptible harm.” Summers v. Earth Island Instit., 555 U.S. 488, 499 (2009) (alteration omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 566 (1992)). The hospitality plaintiffs’ assertion that they will suffer competitive harm is inadequate given the lack of plausible, concrete, non-speculative allegations that they are likely to lose foreign or domestic government business to the hotels and restaurants in which the President has a financial interest. Moreover, the hospitality plaintiffs fail to adequately allege that any such competitive injury is traceable to the alleged violations of the Emoluments Clauses or redressable by an injunction in their

favor. The alleged violations are the President’s receipt of anything of value from foreign or domestic governments, yet plaintiffs cannot show that government patrons are likely to choose the President’s businesses over their own because of the President’s financial interests in those businesses, rather than for any of the myriad other reasons that such independent third parties may elect to patronize the businesses that are affiliated with the President. In an effort to elide these fundamental flaws with their standing argument, the hospitality plaintiffs invoke the competitor-standing doctrine. But that doctrine is inapposite here because the alleged unlawful benefit of having a Presidential financial interest in a business patronized by government customers is not the type of conduct that can be presumed to inevitably harm competitors as a matter of economic logic, especially in the context of determining whether there is adequate injury to adjudicate a constitutional challenge to presidential action.
In any event, the hospitality plaintiffs’ allegations of competitive injury fall outside the zone of interests of the Emoluments Clauses. All agree that the Emoluments Clauses are designed to prevent federal officers from being influenced and corrupted in making their official decisions. By contrast, plaintiffs’ asserted interest—loss of hospitality market share to a federal officer who also happens to be a business competitor—is not even arguably the type of injury that the Clauses are intended to protect against. Avoiding commercial competition from businesses in which the President holds a financial interest is so marginally related to the interests
2

protected by the Emoluments Clauses that the hospitality plaintiffs are improper litigants to raise the violations alleged. And plaintiffs’ contention that the zone-ofinterests test does not apply at all to structural constitutional claims is contrary to law and logic, both of which foreclose conferring a right to litigate such claims on plaintiffs with so remote a relationship to the provisions invoked.
In sum, this case is not really about commercial harms, let alone the regulatory harms that implicate the Emoluments Clauses. Rather, it is an academic debate about the meaning and application of the Emoluments Clauses that the plaintiffs have asked the courts to resolve for ideological reasons. As the caption reflects, this suit was originally filed by Citizens for Responsibility and Ethics in Washington (CREW), a political advocacy organization. But the district court correctly held that CREW could not satisfy standing by asserting harm based on a diversion of resources theory, and CREW does not even appeal that holding. Although the hospitality plaintiffs who were added to the first and second amended complaints continue to press this lawsuit, they present a political debate outside the context of any concrete dispute over the rights of individuals that would be appropriate for an Article III court to resolve. Because there is not “a real need to exercise the power of judicial review in order to protect the[ir] interests,” “allowing courts to oversee . . . executive action” concerning compliance with the Emoluments Clauses “would significantly alter the allocation of power” among the three branches of government. Summers, 555 U.S. at 493. This Court should affirm the dismissal of this manufactured lawsuit.
3

STATEMENT OF JURISDICTION Plaintiffs invoked the jurisdiction of the district court over their federal constitutional claims pursuant to 28 U.S.C. § 1331. JA 30 (¶ 32). On December 21, 2017, the district court held that the plaintiffs lacked standing and dismissed for lack of jurisdiction. SA 2, 30. Plaintiffs filed a timely notice of appeal on February 16, 2018. JA 354-55. This Court has jurisdiction over the appeal under 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES I. Whether the hospitality plaintiffs lack Article III standing to bring their
claims under the Emoluments Clauses. II. Whether the hospitality plaintiffs’ alleged competitive injuries fall outside
the zone of interests of the Emoluments Clauses. STATEMENT OF THE CASE
A. The Emoluments Clauses The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], 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.” U.S. Const. art. I, § 9, cl. 8. The Domestic Emoluments Clause provides that the President “shall . . . receive for his Services” a fixed compensation during his tenure and “he shall not receive within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, § 1, cl. 7.
4

B. The Parties Plaintiff CREW is “a nonprofit, nonpartisan corporation” engaged in “education, advocacy, and enforcement” to advance its stated mission of “protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics.” JA 27 (¶ 21). CREW was the sole plaintiff in the initial complaint, which was filed just three days after President Trump’s inauguration. JA 8. Although CREW alone initiated this litigation, it has expressly abandoned its appeal of the district court’s holding that it lacks Article III standing. Br. 4 n.2. Plaintiff-appellant ROC United is a nonprofit member-based corporation. JA 29 (¶ 28). ROC United has nearly 25,000 restaurant-employee members, over 200 restaurant members, and about 3,000 diner members. JA 24 (¶ 11). The organization owns and operates a restaurant in New York City, with another restaurant “opening . . . soon in Washington, D.C.” Id. ROC United’s members include restaurants in Washington, D.C., and New York that ROC United alleges both serve “diplomats and other officials of foreign states, the United States, and various state and local governments traveling on government business” and also “host and/or cater government events.” JA 66 (¶ 195). Plaintiff-appellant Jill Phaneuf is a resident of Washington, D.C. who “works with a hospitality company to book events for two hotels” in Washington: the Carlyle
5

Hotel and the Glover Park Hotel. JA 25-26 (¶ 15). Ms. Phaneuf alleges that she “seeks to book embassy functions, political functions involving foreign governments, and functions for organizations that are connected to foreign governments, in addition to other events in the Washington, D.C. market,” and that “[h]er compensation is directly tied to a percentage of the gross receipts of the events that she books for the hotels.” JA 26 (¶ 15).
Plaintiff-appellant Eric Goode is a resident of New York and the owner of several hotels, restaurants, bars, and event spaces in New York. JA 26 (¶ 18). Mr. Goode’s hotels include “the Maritime Hotel located in Chelsea; the Bowery Hotel and Ludlow Hotel, both in the Lower East Side; and the Jane Hotel in the Meatpacking District.” Id. Mr. Goode’s restaurants include “the Park, Waverly Inn, and Gemma, the last of which is located in the Bowery Hotel.” Id. Mr. Goode alleges that his “hotels and restaurants have attracted multiple foreign government clients and events, and have also hosted U.S. government officials and state officials” traveling on official government business. JA 26-27 (¶ 18).
Defendant Donald J. Trump is the President of the United States. Plaintiffs allege that the President owns and controls hundreds of businesses worldwide, including some doing business as the Trump Organization. JA 33-34 (¶ 42). Plaintiffs’ hospitality-based allegations of violations of the Emoluments Clauses focus primarily on the President’s financial interest in the Trump-branded hotels in New York City and Washington, D.C. (including the BLT Prime restaurant located in the
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Trump International Hotel in D.C.), as well as the Trump Grill restaurant located in the Trump Tower office building in New York City. JA 36-37, 67 (¶¶ 56-59, 196). But plaintiffs also allege a variety of violations of the Emoluments Clauses that are entirely unrelated to the hospitality industry. See, e.g., JA 42-49 (¶¶ 90-108, 111-129).
C. Prior Proceedings 1. Plaintiff CREW filed this lawsuit on January 23, 2017 (JA 8), alleging that the President has violated and continues to violate the Foreign and Domestic Emoluments Clauses through his financial interests in his businesses. CREW amended its complaint in April 2017 to add as plaintiffs ROC United and Ms. Phaneuf and amended the complaint again in May to add Mr. Goode. JA 8. Plaintiffs seek declaratory and injunctive relief. JA 83-84. Plaintiffs allege that, under their interpretation of the Emoluments Clauses, the President violates the Clauses whenever his businesses receive “anything of value, monetary or nonmonetary,” from an instrumentality of a foreign or domestic government (JA 22-23, 31 (¶¶ 7, 37)), including foreign-government payments for the purchase of goods, food, and services at hotels and restaurants run by businesses in which the President has financial interests (JA 38-41 (¶¶ 64-87)). Plaintiffs further allege that “no proposed plan announced by [the President] or his attorneys can make [the President’s] conduct constitutional or otherwise remedy the[] constitutional violations.” JA 79, 81-82 (¶¶ 254, 267). In that regard, the complaint notes that thenPresident-elect Trump announced on January 11, 2017, that he would turn over the
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leadership and management of the Trump Organization to his adult sons and a Trump Organization executive. Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017), https://www.nytimes.com/2017/01/11/ us/politics/trump-press-conference-transcript.html (Transcript) (cited in JA 34 (¶ 43 & n.10)). At the cited news conference, the President-elect also announced that, among other measures, he had disposed of his easily liquidated assets, that his illiquid assets had been or would be conveyed to a trust, and that he pledged to donate to the U.S. Treasury all profits from foreign governments’ patronage of his hotels and similar businesses in order to avoid even the appearance of a conflict of interest. See id.; see also SA 4. Despite these protections, plaintiffs allege that the President’s plan is insufficient because he did not “relinquish[] ownership of his businesses or even establish[] a blind trust.” JA 34 (¶ 43).
The hospitality plaintiffs allege injuries arising from their purported competition with the President’s hotels and restaurants for business from foreign or domestic government officials. Ms. Phaneuf alleges that because she seeks to book events at hotels that compete with hotels in which the President has an interest, she will lose “commission-based income.” JA 73 (¶ 225). Mr. Goode alleges that “[a]s a hotel and restaurant owner,” he will be “harmed due to loss of revenue” by the President’s “ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local governments.” JA 75 (¶ 234). And ROC United alleges that its restaurant and restaurant-employee members have been
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injured by “lost business, wages, and tips” resulting from increased competition with the President’s restaurants. JA 25 (¶ 13); see also JA 67-72 (¶¶ 199-203, 212, 216-20). Notably, however, despite asserting that their hotels and restaurants “are frequented by foreign and domestic government officials” (JA 267 (¶ 24 (Mallios Decl.)); see also, e.g., JA301-03 (¶¶ 47-48 (Goode Decl.))), and despite asserting that a non-plaintiff allegedly lost a foreign government client to one of the President’s hotels (JA 39-40 (¶¶ 72-74)), none of the hospitality plaintiffs have identified a concrete instance where they have lost business to an establishment in which the President had a financial interest. Nor do they address whether any lost business is attributable to the President’s financial interest in the competing establishments, as opposed to his brand affiliation or any of myriad other factors.
2. On December 21, 2017, the district court granted the President’s motion to dismiss for lack of standing. Because the court held that it lacked jurisdiction over plaintiffs’ claims, it did not reach the question whether plaintiffs had stated a cognizable claim under the Emoluments Clauses. SA 2 n.1.
The district court held that plaintiffs ROC United, Ms. Phaneuf, and Mr. Goode lacked standing because they had failed to establish causation and redressability. SA 12-14. The court emphasized that the hospitality plaintiffs could not adequately show that any loss of foreign or domestic government business was due to the President’s financial interest in competing hotels and restaurants, as opposed to any of the other reasons why customers might prefer his establishments
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to theirs. See id. The district court also held that CREW lacks organizational standing (SA 17-25)—a holding that CREW does not appeal (Br. 4 n.2).
The district court additionally held that “[t]he zone of interests doctrine demonstrates that the Hospitality Plaintiffs are not the right parties to bring a claim under the Emoluments Clauses.” SA 15. The court found there was “simply no basis” (SA 17) to conclude that the hospitality plaintiffs’ alleged competitive injury fell within the zone of interests of the Emoluments Clauses because “[n]othing in the text or history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition” (SA 15). The court also determined that the Foreign Emoluments Clause claim should be dismissed for prudential reasons because it implicates political questions and is not ripe for review. SA 25-29.
Accordingly, the district court dismissed plaintiffs’ complaint for lack of jurisdiction and entered judgment. This appeal followed.
SUMMARY OF ARGUMENT The Article III standing requirement is a fundamental aspect of the separation of powers, and it applies with special rigor where judicial review of Executive Branch action is sought. As the district court correctly held, the plaintiffs here have failed to satisfy the elements of constitutional standing. Indeed, with CREW no longer a plaintiff, the hospitality plaintiffs do not even contend that they have standing to challenge the various non-hospitality-related violations of the Emoluments Clauses alleged in the complaint.
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The hospitality plaintiffs fundamentally err in contending that they have standing to challenge the alleged violations of the Emoluments Clauses that are based on the President’s receipt of value from foreign or domestic governments that patronize hotels or restaurants in which he has a financial interest. Although the complaint and declarations allege that government officials will prefer to patronize the President’s establishments instead of plaintiffs’ businesses, that alleged injury is purely speculative. Moreover, even if such an injury exists, it is neither fairly traceable to the alleged Emoluments Clauses violations nor likely redressable by an injunction against them. There is simply no basis to speculate that the independent decisions of government customers are based on the President’s financial interest in any competing businesses, rather than their affiliation with the Trump brand and family or ordinary factors (such as location, price, quality, etc.) that are unrelated to the asserted violations of the Emoluments Clauses.
Unable to make the concrete showing of economic harm needed to establish Article III standing, plaintiffs invoke the competitor-standing doctrine, but that doctrine is inapplicable here. Courts have recognized competitor standing where the government’s unlawful action has afforded the type of benefit to a competitor that economic logic presumes will inevitably injure the plaintiff. This, however, is unlike the typical competitor-standing case because there is no basis in economic logic to presume that the President’s mere financial interest in a business inevitably confers a competitive advantage over these particular plaintiffs’ hotels and restaurants, for the
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reasons already discussed. Moreover, this is hardly an ordinary commercial dispute and given the heightened separation of powers principles at stake in a constitutional challenge to the actions of the President, this Court should be particularly reluctant to adopt the lax presumption of injury that plaintiffs advocate.
In any event, the district court also correctly held that plaintiffs’ claims fall outside the zone of interests of the Emoluments Clauses. As plaintiffs’ own brief confirms, the Emoluments Clauses were intended to guard against the corruption of federal officers’ decisionmaking. There is no plausible argument that they were intended to protect the unrelated economic interests of market participants that seek to avoid competition from businesses in which federal officers happen to have a financial interest. Plaintiffs urge this Court to hold that the zone-of-interests test does not apply to structural constitutional claims, but they identify no valid basis for that ad hoc distinction. The Supreme Court and this Court have made clear that the test applies to constitutional claims, and the underlying rationale of denying a cause of action to remote plaintiffs equally applies to the Emoluments Clauses and other structural constitutional protections.
STANDARD OF REVIEW On appeal from a district court’s dismissal for lack of standing, this Court reviews the court’s “factual findings for clear error and its legal conclusions de novo.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 417 (2d Cir. 2015). In assessing the plaintiffs’ assertion of standing, this Court “accept[s] as true
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all material allegations of the complaint[ ] and . . . construe[s] the complaint in favor of the complaining party.” Id. (second and third alterations in original) (quoting W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008)). “In deciding a Rule 12(b)(1) motion, the court may also rely on evidence outside the complaint.” Id. The plaintiffs bear the burden of “alleg[ing] facts that affirmatively and plausibly suggest that [they have] standing to sue.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). “While the standard for reviewing standing at the pleading stage is lenient, a plaintiff cannot rely solely on conclusory allegations of injury or ask the court to draw unwarranted inferences in order to find standing.” Baur v. Veneman, 352 F.3d 625, 636-37 (2d Cir. 2003); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
ARGUMENT I. PLAINTIFFS LACK ARTICLE III STANDING TO BRING THEIR CLAIMS
UNDER THE EMOLUMENTS CLAUSES A. Standing Is Fundamental To Article III’s Case-Or-
Controversy Requirement And Cannot Be Satisfied By Speculative Allegations “Article III of the Constitution limits the exercise of the judicial power to ‘Cases’ and ‘Controversies.’” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting U.S. Const. art. III, § 2, cl. 1). The Supreme Court has stressed that “[t]his fundamental limitation preserves the ‘tripartite structure’ of our Federal Government, prevents the Federal Judiciary from ‘intrud[ing] upon the powers given
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to the other branches,’ and ‘confines the federal courts to a properly judicial role.’” Id. (second alteration in original) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).
The standing doctrine is “rooted in the traditional understanding of a case or controversy.” Spokeo, 136 S. Ct. at 1547. “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). As the Supreme Court has emphasized, the “standing doctrine accomplishes this by requiring plaintiffs to ‘alleg[e] such a personal stake in the outcome of the controversy as to . . . justify [the] exercise of the court’s remedial powers on [their] behalf.’” Town of Chester, 137 S. Ct. at 1650 (alterations in original) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)).
Plaintiffs must establish three elements that are the “irreducible constitutional minimum of standing,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)—that they have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547. The Supreme Court has admonished that “[a]bsent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation.” Simon, 426 U.S. at 38.
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“To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. (quoting Lujan, 504 U.S. at 560 n.1).
The Supreme Court has thus rejected standing theories that rest on a “speculative chain of possibilities.” Clapper, 568 U.S. at 410-14 (citing cases, and denying standing premised on a series of assumptions about whether the government would engage in a particular form of surveillance against particular communications); see also, e.g., DaimlerChrysler, 547 U.S. at 344 (state taxpayers’ asserted injury from tax credits was “conjectural or hypothetical” because it “require[d] speculating that elected officials will increase a taxpayer plaintiff’s tax bill to make up a deficit”). This Court has held likewise. See, e.g., Allco Fin. Ltd. v. Klee, 805 F.3d 89, 94 n.3 (2d Cir. 2015) (allegations of lower profits based on future sales “far too speculative to serve as the basis for an Article III injury-in-fact” because the sales were not imminent); Port Wash. Teachers’ Ass’n v. Board of Educ. of Port Wash. Union Free Sch. Dist., 478 F.3d 494, 499-500 (2d Cir. 2007) (“conclusory statements” that plaintiffs would risk civil liability or professional discipline were insufficient because “the theoretical possibility that either might occur in the future does not amount to injury in fact”).
Similarly, plaintiffs cannot establish traceability and redressability where the alleged injury-in-fact depends on the decisions of independent third parties whose
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actions the court can neither predict nor control. As the Supreme Court has explained, for an “injury that results from the independent action of some third party not before the court,” it is “purely speculative” whether the injury “fairly can be traced to the challenged action of the defendant.” Simon, 426 U.S. at 41-43; see also id. at 43 (“It is equally speculative whether the desired exercise of the court’s remedial powers” in such a suit would redress the plaintiffs’ injuries.).
In Simon, for example, low-income plaintiffs lacked standing to challenge the government’s grant of favorable tax treatment to nonprofit hospitals that offered only emergency-room services to indigent patients. Although the Court assumed “that some members [of the plaintiff organizations] have been denied [hospital] service,” it stressed that “injury at the hands of a hospital is insufficient by itself to establish a case or controversy in the context of this suit, for no hospital is a defendant.” Simon, 426 U.S. at 40-41. The Court explained that it did not follow from plaintiffs’ allegations that the denial of hospital access “in fact result[ed]” from the government’s challenged tax ruling or that a court-ordered return to the prior tax policy would result in plaintiffs “receiving the hospital services they desire,” because it was “speculative” whether the hospitals’ decisions were made with “regard to the tax implications.” Id. at 42-43. Likewise, in Garelick v. Sullivan, 987 F.2d 913 (2d Cir. 1993), this Court held that Medicare beneficiaries had no standing to challenge a statutory cap on doctors’ charges because the asserted injury—an increase in charges for poorer beneficiaries who previously benefited from doctors charging wealthier beneficiaries at levels
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higher than the cap—“would be the product of independent choices by physicians from among a range of economic options.” Id. at 919-20; see also Town of Babylon v. Federal Hous. Fin. Agency, 699 F.3d 221, 229-30 (2d Cir. 2012) (plaintiffs lacked standing to challenge bank regulators’ policy bulletin that allegedly encouraged change in bank lending practices because even if the bulletin were vacated, “national banks would remain entirely free to treat [plaintiffs] on an unfavorable basis”).
As noted, the standing requirement for plaintiffs to have a non-speculative injury that is traceable and redressable serves fundamental separation-of-powers principles. The Supreme Court has long emphasized that “[t]he province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803). The standing requirement “tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). It thus protects the judicial process from being converted into “no more than a vehicle for the vindication of the value interests of concerned bystanders.” Id. at 473 (quotation marks omitted).
Finally, because any relaxation of the standing inquiry “is directly related to the expansion of judicial power,” the “standing inquiry has been especially rigorous when
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reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Clapper, 568 U.S. at 408-09 (quotation marks omitted); see also Spokeo, 136 S. Ct. at 1552 (explaining that the injury-in-fact requirement “applies with special force” where “a plaintiff files suit to require an executive agency to ‘follow the law’”). Thus, courts should not “hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury” from the alleged violation. Valley Forge, 454 U.S. at 474; see also Raines v. Byrd, 521 U.S. 811, 819-20 (1997) (emphasizing the separation-of-powers principles underlying standing requirements in the course of dismissing a dispute between members of different branches of government).
B. The Hospitality Plaintiffs Lack Article III Standing The hospitality plaintiffs lack Article III standing for several reasons. First, they do not even attempt to show (and cannot succeed in showing) that they have standing to assert any of the alleged violations of the Emoluments Clauses that are not related to the President’s hospitality businesses in New York or Washington, D.C. Second, the hospitality plaintiffs do not (and cannot) show that they are likely to lose hospitality business from foreign or domestic governments as a result of the President’s alleged financial interests in New York and D.C. hotels and restaurants. Third, the hospitality plaintiffs cannot avoid the consequence of their failure to adequately allege lost business by invoking the competitor-standing doctrine, which is
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inapposite here because the alleged unlawful benefit of a Presidential financial interest in a business with foreign or domestic government customers is not of the type that economic logic dictates will inevitably impose competitive injury on the plaintiffs.
1. Non-hospitality-related violations Unlike CREW, the hospitality plaintiffs’ alleged injuries are tied to competition with the President’s New York and D.C. hotel and restaurant businesses, as their declarations emphasize. See, e.g., JA 269 (Phaneuf Decl.) (describing “efforts to book government events at two Kimpton Hotels in Washington, D.C.”); JA 294 (Goode Decl.) (describing “my hotels and restaurants in New York City that I believe compete with Defendant’s hotels and restaurants”). So too for the alleged injuries of ROC United’s members. See, e.g., JA 256 (¶ 3 (Colicchio Decl.)) (“My restaurants and other businesses in New York City compete with restaurants and businesses located in Trump International Hotel & Tower New York, Trump Tower, and Trump SoHo New York.”); JA 263 (¶ 2 (Mallios Decl.)) (asserting competition with “Defendant’s restaurants in New York City”); JA 285 (Jayaraman Decl.) (describing “restaurants in Washington, D.C. and New York City that employ ROC [United] members, and that are similar to restaurants that Defendant owns or that are otherwise located in Trump-branded properties”).1
1 Although ROC United alleges that it owns the restaurant COLORS in Detroit (JA 29 (¶ 28)), it makes no specific allegation regarding harm to its Detroit business.
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The bulk of the alleged Emoluments Clauses violations described in the second amended complaint, however, are in no way tied to competition with the hospitality plaintiffs’ restaurants or hotels. Those allegations include the purchase of real estate in Trump World Tower and related accusations (JA 42-44 (¶¶ 90-108)); the grant of Chinese trademarks (JA 45-46 (¶¶ 111-18)); payments from distribution of “The Apprentice” and spin-off television programs (JA 47 (¶¶ 119-21)); real estate projects and associated agreements in the United Arab Emirates and Indonesia (JA 47-49 (¶¶ 122-27)); and the Trump Old Post Office LLC’s lease with the General Services Administration, and any tax credit, for the Old Post Office Building in Washington, D.C. (JA 50-52 (¶¶ 130-48)). Likewise, to the extent plaintiffs allege any violations of the Emoluments Clauses arising from any hospitality transactions in locations other than New York and D.C., they have not alleged that they compete in such locations and will suffer injuries there. To the contrary, plaintiffs’ expert declarations rely on the close geographic proximity of plaintiffs’ properties and the President’s businesses in New York and D.C. when attempting to establish competitive injury. See JA 27880 (Roginsky Decl.) (relying on “locational proximity” of the New York hotels); JA 306 (Muller Decl.) (describing assignment as evaluating any competition “between the plaintiffs’ and the defendant’s restaurants, cafes, and event and meeting spaces serving food and beverages in New York City and Washington, D.C.”).
Accordingly, the hospitality plaintiffs have failed to allege any injury whatsoever from any violations of the Emoluments Clauses unrelated to the President’s financial
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interests in hotels and restaurants in New York City and Washington, D.C. That alone is sufficient to establish their lack of standing to challenge the majority of the violations alleged in the complaint. See District of Columbia v. Trump, 291 F. Supp. 3d 725, 742 (D. Md. 2018) (holding that Maryland and the District of Columbia lacked standing to challenge alleged violations of the Emoluments Clauses occurring outside their jurisdictions, such as at the Trump Organization’s Mar-a-Lago facility in Florida). Notably, the hospitality plaintiffs never address the overbreadth of their complaint in light of CREW’s decision not to appeal the dismissal of its claims.
2. Lost business from foreign or domestic governments at hotels and restaurants in New York City and Washington, D.C.
Even limited to the alleged violations of the Emoluments Clauses concerning New York and D.C. hospitality establishments in which President Trump has a financial interest, the hospitality plaintiffs fail to satisfy Article III’s standing requirements. It is entirely speculative (a) whether the hospitality plaintiffs are likely to be injured by losing business to those establishments for foreign or domestic government customers, (b) whether any lost business is traceable or redressable given that such government customers’ decisions could be based on myriad factors other than the President’s financial interest in the establishments, and (c) whether the President’s interest in the establishments may also have countervailing effects on the hospitality plaintiffs’ businesses.
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a. To begin, the hospitality plaintiffs have not satisfied their burden of demonstrating injury in fact. They have not alleged a concrete, imminent, and nonspeculative loss of foreign or domestic government business to President Trump’s hotels and restaurants. See, e.g., Clapper, 568 U.S. at 410-14; Allco Fin. Ltd., 805 F.3d at 94 n.3.
For example, Ms. Phaneuf alleges that she is “actively seeking to book and curate numerous events at the Carlyle Hotel and Glover Park Hotel for foreign and domestic governmental officials and entities,” and notes that she has “reached out to” or “met with” representatives of three foreign governments, one of whom expressed “interest[] in renting the Cocktail Garden of the Glover Park Hotel for an event.” JA 273 (¶¶ 21-24). She also believes that these event spaces compete with the Trump International Hotel. JA 271-72 (¶¶ 9-10, 12). Even taken together, these assertions amount to no more than the speculation that a foreign or domestic government might consider booking an event with Ms. Phaneuf and that this hypothetical client might instead book with the Trump International Hotel. As discussed, such speculation is wholly inadequate to satisfy the injury-in-fact requirement of Article III standing.
Similarly, Mr. Goode asserts that his hotels and restaurants compete with some of the President’s businesses in New York (JA 294 (¶ 2)), and he states that his properties “are regularly frequented by foreign and domestic government officials.” JA 301 (¶ 47); see also JA301-03 (¶¶ 47-49) (providing examples of such patrons). But Mr. Goode does not allege any particularized instances of government customers who
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are now likely to choose to patronize the President’s hotels and restaurants instead of his own. To the contrary, Mr. Goode’s declaration indicates that he has received business from Trump hotels. JA 300 (¶ 36) (“On at least 55 occasions, concierges at various Trump hotels have booked reservations for Trump hotel guests at the Waverly Inn.”).
Although some of ROC United’s members assert that they view certain restaurants located in Trump-branded properties as competitors, they too fail to allege a concrete and non-speculative likelihood of lost business from foreign or domestic government customers. See Br. 17. The closest they come is a declaration from one member asserting a decline in tax-exempt sales at one of his restaurants over a onemonth period from November to December 2016. JA 267 (¶ 28 (Mallios Decl.)). Even assuming arguendo a decline in tax-exempt sales following the election, that of course falls far short of demonstrating government customers lost to the President’s restaurants—rather than, for example, lost business to other restaurants, fewer government travelers following the election, or tightened dining budgets of government customers.2
2 Although the complaint also contains conclusory allegations that ROC United’s own restaurant COLORS competes with the President’s restaurants (JA 71 (¶ 214)), plaintiffs made no effort to support this allegation and their brief on appeal does not even mention COLORS.
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Similarly, although the hospitality plaintiffs’ experts opine that plaintiffs’ hotels and restaurants compete with the President’s businesses for government clientele, the experts stop short of predicting that the hospitality plaintiffs will lose government customers to the President’s businesses. Ms. Roginsky concludes that “government travelers . . . rent rooms and suites at the Trump SoHo, the Trump International New York, [and plaintiffs’ properties] the Bowery, the Maritime, and the Beekman.” JA 284 (¶ 50). Ms. Roginsky does not opine, however, that any government travelers will elect to stay at the President’s hotels instead of the hospitality plaintiffs’ properties, and she acknowledges that “government travelers choose their hotels based on a variety of factors such as price, location, class, and availability.” Id. Similarly, while Dr. Muller states that the hospitality plaintiffs’ restaurants “compete[] for corporate, government, and transient banquet business” with the Trump SoHo (see, e.g., JA 318 (¶ 70)), he does not separate out competition for government business from corporate or other business, nor does he support this conclusion other than to note the number of government offices within a two-mile radius of the allegedly competing ventures (see JA 319 (¶ 76); see also JA 312, 315-16, 322 (¶¶ 36, 57, 94)).3
3 In addition, as the government informed the district court in November 2017, the owner of the Trump SoHo announced a plan to buy out the remainder of its management and license agreement with the Trump Organization by the end of 2017, which further undermines the hospitality plaintiffs’ reliance on any alleged injury from competition with the Trump SoHo or with the restaurants located in that hotel. Dkt. No. 101 (Nov. 24, 2017).
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The hospitality plaintiffs’ failure to allege a non-speculative loss in foreign or domestic government business is particularly stark in contrast to their specific allegation that at least one non-plaintiff has lost identifiable business to the President’s establishments. The plaintiffs allege that “[t]he Embassy of Kuwait held its National Day celebration at Trump International Hotel on February 22, 2017.” JA 39 (¶ 72). Plaintiffs further allege that “[p]rior to the election, a ‘save the date’ reservation had been made with the Four Seasons hotel, where the event had been held previously.” Id. (¶ 74). But the Four Seasons hotel is not a plaintiff in this case. Thus, as with plaintiffs’ emphasis on the alleged efforts of the Trump Organization to build business among government customers (Br. 11-12), it does not suffice for plaintiffs to show that businesses in which the President has an interest are profiting or that others have lost business to the President’s establishments: instead, they must show an injury that is particularized to them. W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 107 (2d Cir. 2008) (“‘[I]njury-in-fact’ requirement means that a plaintiff must have personally suffered an injury.”). Yet, even though the second amended complaint was filed in May 2017 (JA 10), and plaintiffs’ declarations were filed in August 2017 (JA 12-13)—months after the President’s inauguration— plaintiffs have not alleged any concrete examples where plaintiffs themselves have lost the business of a government customer to an establishment in which the President has a financial interest.
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b. Even if the plaintiffs had adequately alleged an injury in fact from loss of foreign or domestic government business to restaurants and hotels affiliated with the President, any such injury is not fairly traceable to the alleged violations of the Emoluments Clauses or likely redressable by an injunction against them. The satisfaction of those elements of Article III standing is too speculative because plaintiffs’ alleged loss of business depends on the independent choices of third-party government customers who may patronize the President’s restaurants and hotels for any number of reasons unrelated to his financial interests in those establishments. See, e.g., Simon, 426 U.S. at 41-43; Garelick, 987 F.2d at 919-20.
For starters, as the district court correctly recognized, even setting aside the President’s “public profile, there are a number of reasons why patrons may choose to visit [the President’s] hotels and restaurants[,] including service, quality, location, price and other factors related to individual preference.” SA 13; see also JA 284 (¶ 50 (Roginsky Decl.)). Moreover, even for those government customers who may be motivated specifically by the President’s affiliation with the hotels and restaurants (see Br. 38-39), they are not necessarily motivated by his financial interest in the establishments. They may focus instead, for example, on the businesses’ relationship with the President’s brand or his family’s financial interests, such that they would continue to patronize the businesses even absent the President’s own financial interest. And this seems particularly likely given the fact that the President has already pledged to donate all profits from foreign governments’ patronage of his hotels and
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restaurants to the U.S. Treasury. See Transcript, supra p. 8, cited at JA 34 (¶ 43 (Second Am. Compl.)); SA 4 (district court opinion).
Indeed, plaintiffs themselves concede (Br. 43) that even if they “received all the relief they seek, some officials could continue to favor the President’s hotels to show brand loyalty to him, or to enrich his adult children, or for legitimate competitive reasons.” See also SA 13 (observing that the President “had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business” before he took office). And plaintiffs further underscore this by relying on alleged lost business to the Jean-Georges restaurant in the Trump International Hotel in New York, which is unrelated to the alleged violations of the Emoluments Clauses given that plaintiffs do not allege that the President even has a financial interest in the restaurant itself (as opposed to the hotel). Compare Br. 3, 18, and JA 67 (¶ 196), with JA 35-41 (¶¶ 46-89).
In short, as the district court recognized, the Emoluments Clauses “do not prohibit [the President’s] businesses from competing directly with the Hospitality Plaintiffs.” SA 14. Thus, even if the court were to order the President “not to personally accept any income from government business,” it would “have no power to lessen the competition inherent in any patron’s choice of hotel or restaurant.” Id.; see Allco Fin. Ltd., 805 F.3d at 98 (“merely voiding its competitors’ contracts would not redress [plaintiff’s] injury”—plaintiff “must show, at a minimum, that the requested relief provides a path for [plaintiff] to eventually obtain” a contract).
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c. Although the hospitality plaintiffs acknowledge that “some government officials” would patronize the President’s establishments regardless of his financial interests, they insist that at least some others would not and thus “the President’s acceptance of emoluments has injured them by placing a distinct, illegal thumb on the competitive scales.” Br. 43. As noted, this position is inherently speculative because there is no basis to assume that any of the government customers specifically motivated by the President’s financial interests would otherwise have patronized plaintiffs’ particular businesses rather than the countless other hotels and restaurants in New York and Washington, D.C.
Moreover, the speculative nature of plaintiffs’ argument is exacerbated by their failure to account for potentially countervailing effects of the President’s financial interests in any competing businesses. Just as some government officials may be inclined for various reasons to patronize a President’s businesses, other officials may be inclined to avoid such businesses for various reasons, such as to make a political statement or to avoid any appearance of impropriety. To be sure, “the fact that an injury may be outweighed by other benefits . . . does not negate standing.” See Denney v. Deutsche Bank AG, 443 F.3d 253, 265 (2d Cir. 2006) (victims of wrongful tax advice were injured in light of the excessive fees paid as well as the costs incurred to rectify their improper tax strategies, regardless of whether they also saved taxes because the IRS had not yet penalized them for implementing those strategies). But a plaintiff may have “suffered no real injury” in the first place “where the costs and benefits are
28

of the same type,” “arise from the same transaction,” and are “offsetting.” Texas v. United States, 787 F.3d 733, 750 (5th Cir. 2015) (discussing Henderson v. Stalder, 287 F.3d 374, 379-81 (5th Cir. 2002)). Here, the hospitality plaintiffs do not even attempt to speculate as to, let alone adequately allege, the net effect on their particular businesses of the President’s financial interests in the relevant establishments. This further confirms that they lack Article III standing.
3. Competitor-standing doctrine The hospitality plaintiffs try to evade their inability to make a non-speculative showing of lost business by invoking the competitor-standing doctrine. Br. 27-31. But contrary to their suggestion, that doctrine does not permit a plaintiff to end run the requirements of Article III standing whenever a competitor has received an allegedly unlawful benefit. Rather, the doctrine merely presumes in some circumstances that conferring an unlawful benefit on a competitor will inevitably injure the plaintiff as a matter of economic logic. And for essentially the same reasons already discussed, the alleged violations of the Emoluments Clauses do not warrant that presumption. a. The competitor-standing doctrine initially arose in the context of cases alleging that the federal government had erroneously allowed banks to begin competing in entirely new fields of business. See In re U.S. Catholic Conference (USCC), 885 F.2d 1020, 1029 (2d Cir. 1989). Although the doctrine has expanded beyond that context, the D.C. Circuit has emphasized that “the basic requirement common to all [such] cases” is that the allegedly unlawful competitive benefit must “almost certainly
29

cause an injury in fact.” Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010); see also El Paso Nat. Gas Co. v. FERC, 50 F.3d 23, 27 (D.C. Cir. 1995) (“The nub of the ‘competit[or] standing’ doctrine is that when a challenged agency action authorizes allegedly illegal transactions that will almost surely cause [a plaintiff] to lose business, there is no need to wait for injury from specific transactions to claim standing.”); Canadian Lumber Trade All. v. United States, 517 F.3d 1319, 1332 (Fed. Cir. 2008) (“the doctrine of ‘competitor standing[]’ . . . relies on economic logic to conclude that a plaintiff will likely suffer an injury-in-fact”).
Plaintiffs cite various cases (Br. 28) where this presumption of injury was held to be justified by the nature of the allegedly unlawful benefit conferred on the competitor. See, e.g., Adams v. Watson, 10 F.3d 915, 922-24 (1st Cir. 1993) (holding that “the economic ‘facts’ alleged” were sufficient to establish competitive injury because they relied on “core economic postulates” to establish “a sufficient likelihood that the challenged [milk] pricing order will result in reduced out-of-state milk sales to Massachusetts dealers at lower prices”); TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825-26 (9th Cir. 2011) (explaining that in a false advertising suit, a plaintiff “can prove his injury using actual market experience and probable market behavior,” and finding competitive injury where the evidence suggested that the defendants’ misleading endorsement was “an important factor in consumers’ choice of traffic schools,” and that the parties competed for the same referral revenue, with “[s]ales gained by one. . . likely to come at the other’s expense” (quotation marks omitted)).
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But plaintiffs overread such cases (Br. 29-30) to apply the presumption whenever “a party acts illegally and thereby distorts competition” or “the defendant’s unlawful conduct confers a benefit on a plaintiff’s competitor.”
Indeed, the Supreme Court has squarely rejected “a boundless theory of standing” in which “a market participant is injured for Article III purposes whenever a competitor benefits from something allegedly unlawful—whether a trademark, the awarding of a contract, a landlord-tenant arrangement, or so on.” Already, LLC v. Nike, Inc., 568 U.S. 85, 99 (2013). Rather, competitive injury must be “based on an injury more particularized and more concrete than the mere assertion that something unlawful benefited the plaintiff’s competitor.” Id. Accordingly, courts routinely reject invocations of the competitor-standing doctrine where the allegedly unlawful benefit does not presumptively dictate competitive injury as a matter of economic logic. See, e.g., El Paso Nat. Gas, 50 F.3d at 28 (allowing a competitor to be regulated by a state agency rather than the federal agency that regulated the plaintiff was not an “injury in fact” for purposes of “‘competitor standing’ cases” absent evidence of “a difference in regulatory burdens”); State Nat’l Bank of Big Spring v. Lew, 795 F.3d 48, 55 (D.C. Cir. 2015) (alleged reputational benefit to a competitor from enhanced regulatory burdens was “simply too attenuated and speculative”); New World Radio, Inc. v. FCC, 294 F.3d 164, 172 (D.C. Cir. 2002) (renewal of a potential competitor’s license in a different market was “too remote to confer standing” based on a “‘chain of events’ injury” that renewal would allow the licensee to seek to relocate the license and begin competing).
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b. The hospitality plaintiffs can identify no economic principle that supports their speculative assertion that the Emoluments Clauses violations alleged here—which relate to the President’s financial interests in hotels and restaurants— confer an inevitable competitive benefit on the President’s businesses in the hospitality market for foreign and domestic government patrons. This is not a case where economic logic dictates the inference that a gain in business for one direct competitor necessarily results in a loss of business for one of the other competitors. Cf. TrafficSchool.com, Inc., 653 F.3d at 825-26. Nor is this a case about a commodities market where a benefit, such as a subsidy, will inevitably result in more sales by the beneficiary (who can sell at a lower price) and fewer sales by the competitor. Cf. Adams, 10 F.3d at 922-24. Instead, the hospitality plaintiffs allege competition in the New York and D.C. hotel and restaurant markets, where the establishments affiliated with the President are just few of many competing businesses, even accounting for similarities in location, pricing, etc.
The mere fact of some competition between a plaintiff and a defendant, which is at most what the hospitality plaintiffs have alleged here, is insufficient to establish injury. Cf. Already, 568 U.S. at 99; El Paso Nat. Gas, 50 F.3d at 27. And apart from pure speculation about the possible motivations of foreign and domestic government officials, plaintiffs have offered no reason to presume that they have lost or will lose business because the President has a financial interest in hotels and restaurants. As plaintiffs’ own expert recognized, government patrons “choose their hotels based on
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a variety of factors such as price, location, class, and availability,” JA 284 (¶ 50 (Roginsky Decl.)), including potentially the affiliation with the President’s brand regardless of his own financial stake. Moreover, the hospitality plaintiffs have taken no account of the fact that they may benefit from government officials who decide not to patronize the President’s hotels and restaurants because of his financial interests in those establishments. Cf. State Nat’l Bank, 795 F.3d at 55; El Paso Nat. Gas, 50 F.3d at 28. This failure underscores the speculative nature of their alleged competitive injury.
The relaxed presumption of competitive injury that the hospitality plaintiffs urge the Court to adopt is particularly ill suited here because this case is far from an ordinary commercial dispute. Plaintiffs have brought an ideologically driven constitutional challenge against the President of the United States. The Supreme Court has “insisted on strict compliance” with the injury-in-fact standing requirement in cases like this posing acute separation-of-powers concerns. See Raines, 521 U.S. at 819. To be sure, this Court has applied the competitor standing analysis to constitutional disputes between political competitors in the midst of an election campaign. E.g., Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994). But it also has emphasized that “the requirements of Article III [must] be applied with equal rigor to cases concerning participation in the political process.” USCC, 885 F.2d at 1030 (“[S]trongly held beliefs are not a substitute for injury in fact.”). And here, applying the lax approach to competitor standing urged by plaintiffs would effectively give them “a special license to roam the country in search of governmental wrongdoing”
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and convert federal courts into “ombudsmen of the general welfare.” Valley Forge, 454 U.S. at 487. II. THE PLAINTIFFS’ ASSERTED INJURIES DO NOT FALL WITHIN THE
ZONE OF INTERESTS OF THE EMOLUMENTS CLAUSES A. The Zone-Of-Interests Requirement Bars Plaintiffs From
Relying Upon Injuries That Are Too Attenuated From The Purposes Of The Legal Provision Upon Which Their Claim Is Based “Beyond the constitutional requirements” of Article III standing, a plaintiff’s complaint must also fall within “the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Valley Forge, 454 U.S. at 474-75; In re Appointment of Indep. Counsel, 766 F.2d 70, 76 (2d Cir. 1985) (explaining that the zone-of-interests “test is another hurdle for plaintiffs after they have satisfied the caseor-controversy requirements”). This test “denies a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit” in the legal provision invoked that “it cannot reasonably be assumed” that the provision was “intended to permit the [plaintiff’s] suit.” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399 (1987); see also Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (cautioning that plaintiff’s injury need only be “‘arguably’” within the applicable provision’s zone of interests). By providing that “the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests,’” Lujan v. National Wildlife Fed’n, 497 U.S. 871, 883 (1990), the test “serve[s] to limit the
34

role of the courts in resolving public disputes” by asking “whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief,” Warth v. Seldin, 422 U.S. 490, 500 (1975). And while the test “is not meant to be especially demanding,” for claims brought under the “generous review provisions” of the Administrative Procedures Act (APA), Clarke, 479 U.S. at 395, 399; Patchak, 567 U.S. at 225, the Supreme Court “ha[s] indicated that it is more strictly applied” where, as here, a plaintiff purports to “proceed[] under a ‘constitutional . . . provision’” directly because the APA is unavailable, Wyoming v. Oklahoma, 502 U.S. 437, 469 (1992) (Scalia, J., dissenting) (ellipsis in original) (quoting Clarke, 479 U.S. at 400 n.16); see also Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (“As the APA does not expressly allow review of the President’s actions, we must presume that his actions are not subject to its requirements.”).4
B. The Emoluments Clauses Are Not Even Arguably Intended To Protect Against Commercial Competition From Businesses In Which Federal Officers Happen To Have A Financial Interest
It is undisputed that—as the hospitality plaintiffs themselves detail (Br. 5-8)— the Framers adopted the Emoluments Clauses to guard against the risk that
4 In fact, plaintiffs lack an implied cause of action in equity to enforce the Emoluments Clauses against the President, which is an additional basis to affirm the dismissal of this suit. See infra pp. 42-43.
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“officeholders’ ‘private interests’ would improperly influence their ‘exercise of public power.’” Br. 5 (quoting Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United 38 (2014)). As plaintiffs observe (Br. 5-6), the Foreign Emoluments Clause was intended to guard against the risk that the decisionmaking of an officeholder “might be unconsciously corrupted” by foreign governments, and the Domestic Emoluments Clause was intended to address the Framers’ concern about “corruption from within.” See also SA 16 (explaining that the Framers sought to protect against undue foreign influence and to ensure officeholders’ independence).
Edmund J. Randolph explained at the Virginia ratification convention that the Foreign Emoluments Clause “restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state . . . . This restriction is provided to prevent corruption.” 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 465-66 (2d ed. 1854). Likewise, Alexander Hamilton explained that, under the Domestic Emoluments Clause, “[n]either the Union nor any of its members will be at liberty to give, nor will [the President] be at liberty to receive any other emolument, than that which may have been determined by the first act,” thereby ensuring that the President has “no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.” The Federalist No. 73, at 493-94 (Jacob E. Cooke ed., 1961).
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Yet here, there is no allegation that the President has engaged in any regulatory or other official conduct—whether taking action or refraining from action—as a result of having received any alleged emoluments related to the hospitality business, let alone that any such conduct injured the hospitality plaintiffs. Instead, plaintiffs merely object to increased competition for government customers from businesses in which the President happens to have a financial interest.
There is no support at all, however, for the proposition that the Emoluments Clauses were even arguably intended to protect against competition from a government official’s businesses, let alone that such a commercial interest is at “the very core of those provisions,” as plaintiffs assert (Br. 49). The district court was correct to observe that “[n]othing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition” from federal officers (SA 15), and plaintiffs have pointed to nothing that suggests otherwise. Indeed, they recognize (Br. 5, 48) that the Clauses were intended to prevent corruption and protect independence, and that those goals were simply the means of ensuring the fundamental integrity of the “exercise of public power” against the citizenry. Yet, they seek to have the Clauses protect against injuries wholly unconnected to such exercises of public power. Plaintiffs’ more mundane objection to increased competition from businesses in which the President happens to have a financial interest is so marginally related to the Emoluments Clauses’ purposes that it falls well outside the zone of interests for which judicial relief is available.
37

C. The Zone-Of-Interests Test Fully Applies To Claims Under The Emoluments Clauses
Plaintiffs do not and cannot dispute that the zone-of-interest test generally applies to constitutional claims. See, e.g., Valley Forge, 454 U.S. at 475 (“[T]he Court has required that the plaintiff’s complaint fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” (emphasis added; quotation marks omitted)); In re Appointment of Indep. Counsel, 766 F.2d at 74 (same). Instead, plaintiffs contend (Br. 46-48 & n.12) that there is an exception for “structural” constitutional claims, because the test either does not apply at all to such claims or (what is essentially the same thing) is satisfied for such claims whenever the plaintiff has suffered Article III injury from the alleged violation. This argument is fundamentally mistaken.
To begin, as plaintiffs concede (Br. 47 n.12), the Supreme Court has applied the zone-of-interests test to a dormant Commerce Clause claim. See Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 321 n.3 (1977) (explaining that plaintiff exchanges were “arguably within the zone of interests” of the dormant Commerce Clause in asserting right to engage in interstate commerce free of discriminatory taxes). And the courts of appeals, including this one, have done the same. See, e.g., Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 474-76 (5th Cir. 2013) (holding that waste haulers’ alleged injuries fell outside “the ‘zone of interests’ protected by the dormant Commerce Clause”); Individuals for Responsible Gov’t, Inc. v. Washoe Cty. ex rel. Bd. of Cty.
38

Comm’rs, 110 F.3d 699, 703 (9th Cir. 1997) (“[T]he zone of interests test also governs claims under the Constitution in general, and under the negative Commerce Clause in particular.” (quotation marks and alteration omitted)); Selevan v. New York Thruway Auth., 584 F.3d 82, 91-92 (2d Cir. 2009) (holding that plaintiffs had satisfied zone-ofinterests test for dormant Commerce Clause claim). Thus, although the dormant Commerce Clause is a structural limit on state regulation of interstate commerce, Boston Stock Exch., 429 U.S. at 328-29, a plaintiff cannot challenge a state law that exceeds those limits, even if it is suffering Article III injury from the law, where its own interest is sufficiently remote from the protection of interstate commerce, Cibolo Waste, 718 F.3d at 475-76 (plaintiffs injured by challenged law fell outside zone of interests because their own business was “purely intrastate”).
Moreover, plaintiffs offer no persuasive reason for excluding structural constitutional challenges from the generally applicable zone-of-interests test, and they cite no case that so holds. They merely emphasize (Br. 47-48) that many structural provisions are designed to protect “individual liberty,” and thus individuals may seek judicial relief where their liberty has been infringed in the manner that the structural provision at issue sought to prevent. See, e.g., Bond v. United States, 564 U.S. 211, 222 (2011) (criminal defendant convicted under federal statute that exceeded Congress’s Article I authority to regulate individuals); see also Br. 46 (citing similar cases). By contrast, as discussed, the Emoluments Clauses are intended to protect the freedom of individuals from regulation by federal officials whose decisionmaking might be
39

corruptly influenced by other governments—not the freedom of individuals from competition for government customers with an official’s private business. Whether or not the latter infringement may give rise to Article III injury, it is not even arguably within the zone of interests protected by the Emoluments Clauses.
Indeed, plaintiffs’ contention that Article III standing is sufficient to enforce any structural provision of the Constitution would lead to absurd consequences. As the Supreme Court recognized in Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), the zone-of-interests test stops short of “the outer boundaries of Article III” in order to preclude “plaintiffs who might technically be injured in an Article III sense” from suing where their “interests are unrelated” to the prohibitions they seek to enforce. Id. at 177-78; see also id. at 177 (noting that if any person who suffered an Article III injury could sue to enforce Title VII, “a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence”).
Here, for example, if a business competitor could sue the President because of increased competition, then so could any of the competitor’s employees or vendors who are financially harmed because the competitor is faring less well. Likewise, in Bond, the defendant’s family members or any household employees could have sued to enjoin her prosecution on the ground that her incarceration would interfere with their relationships. Even more absurdly, if a publishing company had a requirements contract with the government to publish the account of the receipts and expenditure
40

of public money, see U.S. Const. art. I, § 9, cl. 7, it could raise a constitutional challenge to the government’s refusal to publish the account on a timely basis. But see National Wildlife Fed’n, 497 U.S. at 883 (explaining that “the failure of an agency to comply with a statutory provision requiring ‘on the record’ hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be ‘adversely affected within the meaning’ of the [APA]” and would fall outside the zone of interests).
To be sure, it may be more difficult for a plaintiff to demonstrate that it is or will be injured by a government official’s official action that is fairly traceable to the receipt of prohibited emoluments from foreign or domestic governments. “But ‘[t]he assumption that if [plaintiffs] have no standing to sue, no one would have standing, is not a reason to find standing.’” Valley Forge, 454 U.S. at 489 (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974)). And that is particularly apposite here, because many transactions that could violate the Emoluments Clauses would not ever involve business competitors: for example, a gift from a foreign or domestic government to a federal official.
Indeed, the Supreme Court has recognized that “[i]n a very real sense, the absence of any particular individual or class to litigate [constitutional] claims gives support to the argument that the subject matter is committed to the surveillance of
41

Congress, and ultimately to the political process.” United States v. Richardson, 418 U.S. 166, 179 (1974); see also USCC, 885 F.2d at 1031 (“[T]he lack of a plaintiff to litigate an issue may suggest that the matter is more appropriately dealt with by Congress and the political process.”). Thus, although plaintiffs criticize the district court’s politicalquestion and ripeness holdings (Br. 50-56), they cannot dispute that the court was correct in at least one fundamental respect: insofar as there is no plaintiff with Article III standing falling within the zone of interests of the Emoluments Clauses, the enforcement of those provisions is to that extent a political question committed to Congress, especially because Congress can consent to receipt of foreign emoluments. U.S. Const. art. I, § 9, cl. 8.
Finally, if anything, the zone of interests test applies “more strictly” because plaintiffs seek to bring a constitutional claim in the absence of a statutory cause of action under the APA or otherwise. See Wyoming, 502 U.S. at 469 (Scalia, J., dissenting) (quoting Clarke, 479 U.S. at 400 n.16). For that reason, this is not “a proper case” for courts to provide the “judge-made remedy” of an implied cause of action in equity to enjoin unconstitutional action by public officials. Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015); see also Massachusetts v. Microsoft Corp., 373 F.3d 1199, 1214 (D.C. Cir. 2004) (emphasizing court’s “broad discretionary power to withhold equitable relief as it reasonably sees fit”). And that is all the more so because federal courts cannot issue an injunction against the President himself in an official-capacity suit, see, e.g., Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 500-01
42

(1867); Swan v. Clinton, 100 F.3d 973, 976 n.1 (D.C. Cir. 1996), and because implied
equitable claims against the government traditionally are not themselves enforcement
actions but rather the preemptive assertion of a defense to an anticipated enforcement
action by the government, see, e.g., Free Enter. Fund v. Public Co. Accounting Oversight Bd.,
561 U.S. 477, 487 (2010); Michigan Corr. Org. v. Michigan Dep’t of Corr., 774 F.3d 895,
906 (6th Cir. 2014). Simply put, the Emoluments Clauses claims against the President
must be resolved by Congress or the public, not by the courts.
CONCLUSION For the foregoing reasons, the judgment of the district court should be
affirmed.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
MICHAEL S. RAAB MEGAN BARBERO
Attorneys, Appellate Staff Civil Division, Room 7226 U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 (202) 532-4631
MAY 2018
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CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limit of Federal Rule of Appellate Procedure 32(a)(7)(B) and Second Circuit Rule 32.1(a)(4)(b) because it contains 10,924 words. This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14-point font, a proportionally spaced typeface.
s/ Megan Barbero MEGAN BARBERO

CERTIFICATE OF SERVICE I hereby certify that on May 29, 2018, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Second Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
s/ Megan Barbero MEGAN BARBERO

ADDENDUM

TABLE OF CONTENTS U.S. Const. art. I, § 9, cl. 8 ....................................................................................................A1 U.S. Const. art. II, § 1, cl. 7...................................................................................................A1 U.S. Const. art. III, § 2, cl. 1 .................................................................................................A1

U.S. Const. art. I, § 9, cl. 8 (Foreign Emoluments Clause) No Title of Nobility shall be granted by the United 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.
U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause) The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
U.S. Const. art. III, § 2, cl. 1 The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
A1

 
 No.  %&-­()(  

In the United States Court of Appeals for the Second Circuit
____________________________

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF, AND ERIC GOODE,
Plaintiffs-Appellants,

v.

DONALD J. TRUMP, in his ofﬁcial capacity as President of the United States of America,
Defendant-Appellee. ____________________________

On Appeal from the United States District Court for the Southern District of New York
Case No. 17-cv-458 (The Honorable George B. Daniels) _________________________________________________________

REPLY BRIEF OF PLAINTIFFS-APPELLANTS
_________________________________________________________

NORMAN L. EISEN STUART C. MCPHAIL ADAM J. RAPPAPORT LAURA C. BECKERMAN Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W. Washington, DC 20001 (202) 408-5565

DEEPAK GUPTA JONATHAN E. TAYLOR JOSHUA MATZ DANIEL TOWNSEND Gupta Wessler PLLC 1900 L Street, N.W., Suite 312 Washington, DC 20036 (202) 888-1741 deepak@guptawessler.com

June 27, 2018

Counsel for Plaintiffs-Appellants (Additional counsel listed on the next page)

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767
ERWIN CHEMERINSKY* Dean of the School of Law University of California, Berkeley 215 Boalt Hall Berkeley, CA 92697 (510) 642-6483

JOSEPH M. SELLERS DANIEL A. SMALL Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Washington, DC 20005 (202) 408-4600

*Afﬁliations noted for identiﬁcation purposes only

CORPORATE DISCLOSURE STATEMENT Citizens for Responsibility and Ethics in Washington and Restaurant Opportunities Centers United have no parent corporations. Neither of them have stock, and hence no publicly held company owns 10% or more of their stock.
i

TABLE OF CONTENTS Corporate disclosure statement ............................................................................... i Table of authorities ............................................................................................... iii Introduction ............................................................................................................ 1 Argument ............................................................................................................... 2
I. The plaintiffs satisfy Article III’s requirements. ...................................2 A. Because they rely on the well-established competitorstanding doctrine, the plaintiffs need not produce an itemized list of lost sales to satisfy Article III. ............................ 3 B. The plaintiffs meet the requirements for competitor standing. ....................................................................................7 1. A wide range of beneﬁts—including the acceptance of foreign and domestic emoluments—can result in cognizable competitive injury. .........................................7 2. The plaintiffs have offered a substantial basis for concluding that some ofﬁcials will make decisions based on the opportunity to enrich the President. .................... 11
II. The zone-of-interests test poses no obstacle here. .............................. 19 A. Far from imposing a heightened requirement, the zoneof-interests test poses no obstacle for equitable claims alleging structural constitutional violations. .............................20 B. The plaintiffs’ interests are not “so marginally related to or inconsistent with the purposes” of the Emoluments Clauses that they fall outside the zone of interests....................25
Conclusion ............................................................................................................ 27
ii

Cases

TABLE OF AUTHORITIES

Adams v. Watson, 10 F.3d 915 (1st Cir. 1993) ...................................................................................... 5

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ............................................................................................... 10

Association of Battery Recyclers, Inc. v. E.P.A., 716 F.3d 667 (D.C. Cir. 2013) ............................................................................... 22

Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970) ............................................................................................... 3

Bond v. United States, 564 U.S. 211 (2011) ........................................................................................... 19, 23

Boston Stock Exchange v. State Tax Commission, 429 U.S. 318 (1977) ............................................................................................... 22

Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319 (Fed. Cir. 2008).............................................................................4, 5

Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469 (5th Cir. 2013)..................................................................................24

Clarke v. Securities Industry Association, 479 U.S. 388 (1987) ..................................................................................... 3, 25, 27

Clinton v. City of New York, 524 U.S. 417 (1998)................................................................................................ 3

Cooper v. Texas Alcoholic Beverage Commission, 820 F.3d 730 (5th Cir. 2016) .................................................................................. 4

Center for Reproductive Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002)................................................................................6, 8

Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) ................................................................................. 19

iii

Fenstermaker v. Obama, 354 Fed. App’x 452 (2d Cir. 2009).......................................................................24
Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010)............................................................................................... 22
Fulani v. League of Women Voters Education Fund, 882 F.2d 621 (2d Cir. 1989) .................................................................................... 5
El Paso Natural Gas Company v. FERC, 50 F.3d 23 (D.C. Cir. 1995)................................................................................... 8
In re U.S. Catholic Conference, 885 F.2d 1020 (2d Cir. 1989) .................................................................................. 6
Keepers, Inc. v. City of Milford, 807 F.3d 24 (2d Cir. 2015) .................................................................................... 23
Louisiana Energy & Power Authority v. FERC, 141 F.3d 364 (D.C. Cir. 1998) ................................................................................ 5
Larson v. Valente, 456 U.S. 228 (1982) ............................................................................................... 11
Lexmark International Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) ....................................................................................... 21, 24
Liquid Carbonic Industries Corp. v. FERC, 29 F.3d 697 (D.C. Cir. 1994) ................................................................................. 5
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) ..................................................................................... 2, 25, 26
National Credit Union Administration v. First National Bank & Trustee Co., 522 U.S. 479 (1998) ............................................................................................... 5
New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002) ............................................................................8, 9
NicSand, Inc. v. 3M Co., 507 F.3d 442 (6th Cir. 2007) ................................................................................. 5
iv

Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994) ...................................................................................... 3
Selevan v. New York Thruway Authority, 584 F.3d 82 (2d Cir. 2009) ...................................................................................20
Sherley v. Sebelius, 610 F.3d 69 (D.C. Cir. 2010) ................................................................................. 4
State National Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015) ..............................................................................8, 9
Texas v. United States, 787 F.3d 733 (5th Cir. 2015) .................................................................................. 19
TrafﬁcSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011) ...............................................................................5, 6
Wyoming v. Oklahoma, 502 U.S. 437 (1992) .................................................................................... 20, 21, 22
Ofﬁce of Legal Counsel opinions
Applicability of Emoluments Clause to Proposed Service of Government Employee on Commission of International Historians, 11 Op. O.L.C. 89 (1987) .......................................................................................26
Applicability of the Emoluments Clause to Non-Gonverment Members of ACUS, 17 Op. O.L.C. 114 (1993) ......................................................................................26
Books, articles, and other sources
Records of the Federal Convention of 1787 (Max Farrand ed., 1911)...................................17
Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump hotel is place to be, Wash. Post, Nov. 18, 2016, http://wapo.st/2uM0lNv ...................................................................................12
Trump Organization, Donation of Proﬁts from Foreign Government Patronage, https://goo.gl/ ivS2kF................................................................................................................ 16
v

INTRODUCTION The scope of this appeal has narrowed considerably. President Trump does not defend two of the four grounds on which the district court dismissed the plaintiffs’ claims (ripeness and political question). That leaves just two issues: Do the plaintiffs have Article III standing under the competitor-standing doctrine? And if so, does a prudential zone-of-interests test nevertheless bar this suit? On the ﬁrst question, the President no longer disputes that the plaintiffs compete with his properties. Instead, he disparages the competitor-standing doctrine itself, implying that it is a second-rate manner of satisfying Article III. To that end, he suggests that the plaintiffs should be required to produce an itemized list of speciﬁc sales that they lost as a result of his illegal conduct. But the competitor-standing doctrine is well-established and has been invoked in a wide range of contexts to demonstrate Article III standing. And not once has a competitor-standing plaintiff been required to satisfy the stringent test the President invents. Beyond his attack on the doctrine, the President also repeatedly asserts that the plaintiffs lack standing because, in his view, it is inconceivable that foreign or domestic ofﬁcials might take account of the opportunity to personally enrich him when deciding where to spend money. This argument is about as plausible as it sounds. It ignores statements from foreign diplomats, detailed allegations in the complaint, an amicus brief from former national security ofﬁcials, the President’s
1

own conduct in ofﬁce, and common sense. It is also squarely at odds with the theory underlying the Emoluments Clauses—namely, that there are unique risks associated with allowing foreign and domestic ofﬁcials to enrich the President.
On the zone-of-interests issue, the President again tries to hold the plaintiffs to a higher standard than the law requires, claiming that there is a heightened version of the zone-of-interests test for constitutional claims. But recent Supreme Court precedent makes clear that the test poses no barrier to equitable claims alleging violations of structural provisions of the Constitution. And even if the Court were to assume that the test applies here, the plaintiffs’ interests in preventing the President’s unlawful proﬁteering and corruption of the market fall comfortably within the Emoluments Clauses’ zone of interests. These interests certainly are not “so marginally related to or inconsistent with the [Clauses’] purposes” as to warrant dismissal. Match-E-BeNash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012).
ARGUMENT I.   The plaintiffs satisfy Article III’s requirements.
President Trump advances a two-pronged challenge to the plaintiffs’ standing. First, he contends that this case must be dismissed because the plaintiffs have failed to identify speciﬁc customers that they lost as a result of his illegal conduct. Here, the President largely ignores the plaintiffs’ theory of standing and instead refutes a different theory of his own creation. Second, the President argues that the plaintiffs
2

lack competitor standing. In particular, he asserts that there is no reason to infer that some foreign and domestic ofﬁcials will favor the President’s properties based on the opportunity to ﬁnancially beneﬁt him. Here, he disregards a full section of the plaintiffs’ opening brief—not to mention several amicus briefs—offering a substantial basis for that conclusion. The President’s arguments for dismissing this case under Article III should therefore be rejected.
A.   Because they rely on the well-established competitorstanding doctrine, the plaintiffs need not produce an itemized list of lost sales to satisfy Article III.
The President repeatedly implies that the plaintiffs have invoked a juniorvarsity standing doctrine. See, e.g., Pres. Br. 11, 29; but see Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987); Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150 (1970). To support that erroneous impression, the President devotes a full section of his brief to insisting that the plaintiffs have standing only if they can enumerate speciﬁc customers lost to the President’s hotel and restaurant properties as an immediate consequence of his Emoluments Clause violations. Pres. Br. 21-29. This account of the required showing for Article III standing is without foundation.
Competitor-standing doctrine is hardly exotic. This Court has described it as “well-established,” Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994), and the Supreme Court “routinely recognizes” standing based on competitor injury. Clinton v. City of New York, 524 U.S. 417, 433 (1998). The doctrine has been invoked in many cases,
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across many contexts, to demonstrate that plaintiffs satisﬁed the requirements of Article III. See Scholars Br. 6-18. And it rests on a simple premise: “[I]ncreased competition leads to actual economic injury.” Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 738 (5th Cir. 2016). From that premise, courts have cited “economic logic to conclude that a plaintiff will likely suffer an injury-in-fact” when the defendant’s unlawful conduct beneﬁts some of the plaintiff’s current competitors in a manner relevant to the plaintiff’s business. Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1332 (Fed. Cir. 2008).
At bottom, the President’s argument thus amounts to little more than a disagreement with the well-established body of competitor-standing precedent. As we have explained, the competitor-standing doctrine is founded on the premise that illegal activity can harm competitors in ways impossible to quantify with surgical exactitude. See Opening Br. 27-31. When that occurs, it would be unjust—and at odds with Article III—to lock the courthouse door. Judges have therefore held that a plaintiff need only “show an actual or imminent increase in competition, which increase we recognize will almost certainly cause an injury in fact.” Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010). As the D.C. Circuit has explained: Plaintiffs “sufﬁciently establish their constitutional standing by showing that the challenged action authorizes allegedly illegal transactions that have the clear and immediate potential to compete with the petitioners’ own sales. They need not wait for speciﬁc, allegedly
4

illegal transactions to hurt them competitively.” La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367 (D.C. Cir. 1998). Put differently, courts have held that “[i]ncreased competition” resulting from a defendant’s conduct is itself “a cognizable Article III injury.” Liquid Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 701 (D.C. Cir. 1994).
This principle explains why courts have not required plaintiffs in antitrust and unfair-competition cases to provide an itemized list of speciﬁc sales that would have occurred absent the defendant’s anti-competitive conduct. See, e.g., TrafﬁcSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir. 2011); NicSand, Inc. v. 3M Co., 507 F.3d 442 (6th Cir. 2007) (en banc). It explains why courts do not demand such showings when plaintiffs rely on competitor standing to challenge price orders, regulations, and subsidies. See, e.g., Canadian Lumber, 517 F.3d at 1332 (rejecting the argument that a plaintiff challenging a subsidy must offer an “empirical analysis linking speciﬁc [subsidies] to speciﬁc, demonstrated economic harms,” such as “lost sales”); see also Nat’l Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 488 (1998); Adams v. Watson, 10 F.3d 915, 921 (1st Cir. 1993). It explains why this Court did not require proof of speciﬁc lost votes when it held that Dr. Fulani had competitor standing to challenge the taxexempt status of the League of Women Voters after it excluded her from presidential-primary debates in 1988. See Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 626 (2d Cir. 1989). And it explains why this Court did not require proof of lost clients or donor support when it held that a pro-choice advocacy group had standing
5

to challenge a policy beneﬁting pro-life “competitive adversaries” through federalgrant restrictions. See Ctr. for Reprod. Law & Policy v. Bush, 304 F.3d 183 (2d Cir. 2002).
Simply put, competitor standing is a commonplace, commonsense doctrine. It is frequently employed in cases where illegal acts distort a marketplace. In such cases, injury may be clear, but the exact nature of that injury may be impossible to ascertain at the level of individual market participants. See TrafﬁcSchool.com, 653 F.3d at 825 (authorizing a “chain of inferences” showing how a defendant’s conduct would harm the plaintiff because “proving a counterfactual is never easy”).
The President thus errs in demanding a list of lost customers to establish standing. Pres. Br. 22-25. The law imposes no such requirement. The plaintiffs need only show that they “personally compete[] in the same arena” as the President’s properties and that his alleged illegal conduct confers an advantage on those properties that is likely to place the plaintiffs at a disadvantage. In re U.S. Catholic Conference, 885 F.2d 1020, 1029 (2d Cir. 1989). As we have shown, those requirements are satisﬁed here. See Opening Br. 31-45. Competitor-standing doctrine therefore supplies the proper framework for analyzing the plaintiffs’ Article III standing—and conﬁrms that they have brought a true “case or controversy.”1
1 As a fallback, the President halfheartedly hints (at 32) that the hotel and restaurant markets in New York and D.C. are too complex to support application of the competitor-standing doctrine. But that is not so. The plaintiffs have shown— through detailed allegations, declarations, and unrebutted expert testimony—that they compete with the President’s properties. See Opening Br. 13-19, 32-36.
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B.   The plaintiffs meet the requirements for competitor standing.
The President rests the remainder of his objection to Article III standing on a single contention: that his unlawful conduct isn’t conferring the “type of beneﬁt” on his properties that can be expected to injure the plaintiffs. Pres. Br. 11. He presents this argument in two forms. First, he brieﬂy suggests that the illegal beneﬁt he is conferring on his properties is not cognizable as a matter of law. See id. at 11, 30-31. Second, he asserts that the plaintiffs have failed to offer any basis for concluding that his conduct will lead some foreign and domestic governmental ofﬁcials to prefer his properties. See, e.g., id. at 2, 11, 21, 26, 29, 32. Neither argument holds water.
1.   A wide range of beneﬁts—including the acceptance of foreign and domestic emoluments—can result in cognizable competitive injury.
The President’s ﬁrst argument relies on a misreading of precedent. Courts have not limited competitor standing to speciﬁc kinds of “allegedly unlawful beneﬁt[s].” Pres. Br. 30; see also id. at 32. As explained above, courts have recognized that market actors can be advantaged by illegal activity in many ways—and that a wide range of competitive injuries can therefore support Article III standing. To list just a few examples, courts have found standing where competitors beneﬁted from improper subsidies, price orders, market-access limitations, regulations, anticompetitive conduct, unfair trade practices, and exclusion from election-season debates. See Opening Br. 27-31. Together, these decisions hold that Article III is
7

satisﬁed where the defendant engages in unlawful conduct that beneﬁts an entity competing in the same arena as the plaintiff. See id.; see also Ctr. for Reprod. Law & Policy, 304 F.3d at 183 (taking a broad view of the circumstances in which a beneﬁt to competitors supports Article III standing).
Indeed, even the cases cited by the President support this conclusion. In El Paso Natural Gas Company v. FERC, for example, the court held that a natural-gaspipeline company lacked standing to challenge FERC’s decision not to exercise jurisdiction over two local distribution companies. 50 F.3d 23, 24 (D.C. Cir. 1995). The court ﬁrst observed that the plaintiff was unlikely to ever compete with the distribution companies and thus fell outside the competitor-standing doctrine. Id. at 27. It then added that even if the plaintiff might someday compete with the distribution companies, there was no difference between FERC regulations and those that would otherwise apply. Id. at 28. For that reason, the plaintiff could not have suffered competitive injury as a result of FERC’s decision, which would not beneﬁt the local distribution companies. El Paso thus stands only for the proposition that competitor standing requires (a) competition in the same arena and (b) unlawful conduct by the defendant that confers an actual beneﬁt on the plaintiff’s competitors.
That statement of the law is conﬁrmed by two other cases cited by the President: New World Radio, Inc. v. FCC, 294 F.3d 164 (D.C. Cir. 2002), and State National Bank of Big Spring v. Lew, 795 F.3d 48 (D.C. Cir. 2015). In New World Radio, the court
8

held that a Washington, D.C. radio station lacked standing to challenge the FCC’s renewal of a Maryland radio station’s license. 294 F.3d at 166-69. It based this determination on a ﬁnding that the stations did not compete and would not do so unless several additional, uncertain steps occurred. Id. at 171-72. That holding is both consistent with El Paso and irrelevant here, because the plaintiffs undisputedly compete with the President’s properties in D.C. and New York.
The holding in State National Bank is similarly consistent with El Paso and similarly irrelevant here. In that case, a bank ﬁled suit against the Consumer Financial Protection Bureau to challenge regulations that applied to one of its competitors— but not to the bank itself. See 795 F.3d at 55. The court held that the bank lacked standing because those regulations would burden rather than beneﬁt its competitor. Id. The court then added that the plaintiff’s convoluted theory of how this apparent burden might somehow beneﬁt the competitor was “too attenuated and speculative” to support standing. Id. State National Bank thus holds that burdens on competitors do not support competitor standing—not even when the plaintiff can rustle up a convoluted account of how that burden might occasionally have an upside. That rule sheds no light here. As we explain below, the President’s illegal conduct—accepting emoluments—confers a beneﬁt on his properties.
The President’s reliance on El Paso, New World Radio, and State National Bank thus backﬁres. Even as those cases impose limits on competitor standing, showing
9

that the doctrine is not boundless, they also conﬁrm that competitor standing exists where the defendant’s illegal deeds beneﬁt an entity that currently competes in the same arena as the plaintiff and do so in a manner likely to injure the plaintiff.
That rule follows directly from Already, LLC v. Nike, Inc., 568 U.S. 85 (2013)— yet another case cited by the President that undercuts his position. There, Already (a footwear company) claimed it had standing to challenge Nike’s trademark on the “Air Force 1” shoe, even though it had “no plans to make anything resembling” that product. Id. at 99. Already reasoned that it competed with Nike in the footwear market in general and was thus injured by anything that beneﬁted Nike, no matter how tenuous the connection to its own business. The Supreme Court disagreed. It explained that standing does not exist in every single case where a plaintiff’s competitor “beneﬁts from something allegedly unlawful.” Id. Rather, for a plaintiff to demonstrate standing, she must show that a competitor beneﬁts from illegal activity in a manner likely to injure her. In Already, Nike’s competitors didn’t suffer concrete injury from its allegedly illegal trademark on the Air Force 1 because they had no plans whatsoever to offer similar products. Here, however, that understanding of Article III clariﬁes why this case is justiciable. The President’s practice of accepting emoluments through his properties harms the plaintiffs by advantaging their direct, current competitors in an ongoing struggle to win business from foreign and domestic ofﬁcials.
10

Competitor-standing precedent permits only a single conclusion in this case. The President has adopted an illegal practice of accepting emoluments from foreign and domestic ofﬁcials. The operative complaint describes this practice in detail. As evidenced by their behavior, some ofﬁcials are eager to seek inﬂuence by conferring emoluments on the President through his hotels and restaurants (among other means). The result is that his hotels and restaurants are now more attractive to some of those ofﬁcials—and therefore, by necessity, the plaintiffs’ properties are less attractive to that clientele. If this Court were to grant relief, that injury would be redressed. Article III requires nothing more.2
2.   The plaintiffs have offered a substantial basis for concluding that some ofﬁcials will make decisions based on the opportunity to enrich the President.
We now arrive at the President’s ﬁnal Article III argument: “Plaintiffs cannot show that government patrons are likely to choose the President’s businesses over their own because of the President’s ﬁnancial interests in those businesses, rather than for any of the myriad other reasons that such independent third parties may elect to patronize the businesses that are afﬁliated with the President.” Pres. Br 2. This claim is shot through the President’s brief. It features prominently in every argument he
2 As the plaintiffs explained in their opening brief, they need not show that a “favorable decision will relieve [their] every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982). Even if some ofﬁcials might continue to favor the defendant’s properties for other reasons if he stopped accepting emoluments, granting the plaintiffs’ requested relief would remove a thumb from the competitive scales.
11

advances against standing. And it is incorrect. Although the President accuses the plaintiffs of relying on “pure speculation,” the plaintiffs have offered multiple reasons to conclude that the President’s unlawful conduct has beneﬁted his properties and harmed their own. It is the defendant, not the plaintiffs, who engages in speculation. He rests his case on the improbable claim that a chance to ﬁnancially beneﬁt the President of the United States has no bearing on where ofﬁcials take their business.
To start, the plaintiffs have identiﬁed statements by foreign ofﬁcials indicating that they are, in fact, motivated to enrich the defendant as a means of enhancing their inﬂuence. See Opening Br. 38-39. As the Washington Post reports, several diplomats have opined that “spending money at Trump’s hotel is an easy, friendly gesture to the new president.” See O’Connell & Jordan, For foreign diplomats, Trump hotel is place to be, Wash. Post, Nov. 18, 2016, http://wapo.st/2uM0lNv. This is a fairly direct admission by ofﬁcials who specialize in carefully concealing their motivations. And there is every reason to suspect that some other foreign ofﬁcials feel the same way. See id. (quoting former Mexican ambassador who remarked that “the temptation and the inclination will certainly be there”).
Any doubt should be dispelled by the extraordinary amicus brief ﬁled by former national-security ofﬁcials. That group includes former ofﬁcials from the Departments of State, Commerce, Justice, and Defense, as well as the National Security Council and the National Counterterrorism Center (NCC). Of particular
12

note, it includes two former Secretaries of State, a former Secretary of Defense, and a former Director of the NCC. These ofﬁcials conﬁrm that “our adversaries and even our allies seek every advantage that is available on the international stage.” Natl. Sec. Br. 21. In their view, the district-court opinion in this case thus “rested upon a ﬂawed premise.” Id. at 24. Speciﬁcally, it “understate[d] the demonstrated likelihood that, given the opportunity, foreign ofﬁcials will attempt to curry favor through private business relations with senior U.S. ofﬁcials.” Id. at 25.
As these ofﬁcials explain, the district-court opinion—like the President’s brief to this Court—fails to reckon with the “foundational concept of diplomatic practice that nations will seek to use all available rewards or incentives to inﬂuence the behavior of other nations.” Id. (emphasis added). “While these inducements are usually aimed at the nations themselves, they can just as well be directed at particular ofﬁcials, through such open and accepted means as offering tangible or intangible beneﬁts to help a favored leader, to such hidden and illicit means as bribes, inﬂuence peddling, and other misconduct.” Id. Therefore, the amici conclude, “far from being ‘speculative,’ the proposition that foreign nations have ‘the will and wherewithal’ to seek advantage through available avenues for rewards and inducements is an accepted tenet of modern statecraft.” Id. at 25-26; see also Opening Br. 37-38.
This analysis is, by itself, sufﬁcient to reject the President’s contention that foreign ofﬁcials will disregard the opportunity to ﬁnancially enrich him in deciding
13

which properties to patronize. That contention rests on nothing more than the sayso of the defendant’s lawyers, whereas the national security amicus brief reﬂects hundreds of years of combined experience analyzing the motives of governmental ofﬁcials. This is not to say that ofﬁcials couldn’t also favor the President’s properties for other reasons—e.g., to show brand loyalty. Rather, the point here is that President Trump’s acceptance of emoluments creates a direct link between his bank account and his restaurants and hotels, and some ofﬁcials will care about that link when deciding where to spend money. See Niskanen Center Br. 21 (“[R]ecognizing competitor standing is particularly appropriate in Emoluments-Clause cases given the powerful market-distorting effect a President’s actions can have in light of his political title, access to power, and ability to inﬂuence world and domestic events.”).
In addition, the complaint includes particularized allegations further supporting the plaintiffs’ contention that ofﬁcials are keen to confer ﬁnancial beneﬁts on the President. Speciﬁcally, the complaint alleges that foreign and domestic ofﬁcials have been actively attempting to curry favor with President Trump, and that they have done so through various means of personally enriching him—ranging from favorable regulatory treatment of his businesses (e.g., the Chinese trademark deal and the lease on the Trump International Hotel, D.C.) to control over licenses, tax breaks, and subsidies affecting the defendant’s foreign ventures; to decisions about which hotels, restaurants, apartment buildings, banks, and other properties to patronize. See JA 45-
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46 (Chinese trademarks); JA 50-52 (GSA lease); see also Niskanen Center Br. 9 (collecting sources and examples elaborating on this point). Because CREW is no longer a party to the litigation, some of these allegations are no longer distinct bases for liability under the Emoluments Clauses. See Pres. Br. 19-21. Nonetheless, these allegations remain part of the case. And they undoubtedly constitute a nonspeculative factual basis for concluding that foreign ofﬁcials are, in fact, motivated to seek inﬂuence over the defendant by ﬁnancially enriching him.
Still another basis for that conclusion is President Trump’s own conduct. Foreign and domestic ofﬁcials observe the President closely. See Natl. Sec. Br. 21-26; Niskanen Center Br. 9-13. And what they have observed over the past few years is an individual who deliberately links his private businesses to his ofﬁcial role. Indeed, as we have explained, the President has made numerous public statements strongly implying that his view of foreign nations is related to how they treat the business that he continues to own. See Opening Br. 39 (identifying examples involving China, Turkey, and Saudi Arabia). Further, while he was still in direct control of its operations (but after he had won the election), the President’s ﬂagship hotel in Washington, D.C. hosted an event pitching itself to foreign diplomats. And the hotel has hired a “Director of Diplomatic Sales” whose job is to generate proﬁts by luring foreigngovernment business from other hotels. See JA 37-38.
15

The importance of the President’s private businesses to him is conﬁrmed most
clearly by the fact that he has retained an ownership stake in them, notwithstanding
clear presidential and executive-branch precedent to the contrary. It would have
been easy for the President to signal to foreign and domestic ofﬁcials that they should
afford his properties no special favor. Instead, he retained ownership, temporarily
put his adult children in charge, arranged to receive regular updates, and visited his
own properties on average once every three days. See JA 34 ¶¶ 43-44. Given that
context, it is not “speculative” to conclude that some foreign and domestic ofﬁcials
will view the defendant’s conduct as a signal that spending money at his properties
to enrich him might nudge U.S. policy in a friendly direction.3
Finally, it is inconsistent with the design of the Emoluments Clauses to assert
that the opportunity to ﬁnancially enrich the President cannot tempt ofﬁcials to try
to inﬂuence him. These constitutional provisions rest on the Framers’ contrary
assumption. See Opening Br. 40; see also Legal Historians Br. 10-17. As Elbridge Gerry
warned at the Constitutional Convention, “foreign powers will intermeddle in our
3 The President suggests that foreign ofﬁcials will disregard ﬁnancial beneﬁts to him because he will donate some of the money to the U.S. Treasury. See Pres.. Br. 26-27. But this promise is riddled with substantial loopholes and exceptions. See, e.g., Letter from Representative Elijah E. Cummings to George A. Sorial (May 24, 2017). Indeed, the Trump Organization itself has acknowledged that it would be “impractical” to identify all foreign emoluments prohibited by the Constitution. See Trump Organization, Donation of Proﬁts from Foreign Government Patronage, https://goo.gl/ivS2kF. In any event, this scheme does not even attempt to cover the President’s violations of the Domestic Emoluments Clause.
16

affairs, and spare no [expense] to inﬂuence them.” 2 Records of the Federal Convention of 1787, 268 (Max Farrand ed., 1911); see also Natl. Sec. Br. 11 (observing that the Framers “were especially concerned that foreign nations would use ﬁnancial or other means to interfere in our national security and foreign policy decisions”). That lesson is as true today as it was in 1789. It is no response to argue, as does the President, that ofﬁcials may also favor his properties for myriad other reasons. The Emoluments Clauses themselves reﬂect a judgment by the Framers that it is uniquely dangerous to allow foreign and domestic ofﬁcials to privately enrich the President. That very same judgment conﬁrms that the opportunity to privately enrich him will inﬂuence decisions by some foreign and domestic ofﬁcials.
At bottom, the President’s description of foreign and domestic government ofﬁcials is out of tune with reality. He starts by insisting that ofﬁcials will not view the ability to affect his bank account as relevant to their decisions about where to spend money. That proposition, however, collapses on close inspection. So he retreats to a still more implausible view. He asserts that even if some ofﬁcials might care about enriching him, that opportunity won’t affect their behavior because they are already sufﬁciently motivated to patronize his properties for other reasons. On this account, there are only two kinds of ofﬁcials: those who will never patronize his properties and those who will inevitably do so. There are, apparently, no ofﬁcials who are on the fence about whether to patronize his properties and can be tipped toward doing so
17

by the chance to enrich the President. Put differently, the President contends that if an ofﬁcial patronizes his property—and thus doesn’t patronize the plaintiffs’ properties—that decision must be so completely over-determined that the ability to confer emoluments on the President can’t possibly be any part of the explanation.
Respectfully, that is not a reasonable view of the world, and it would be especially improper to accept that unsupported empirical claim at this early stage of the case. Given the considerations discussed above, it is not “speculative” to believe that some foreign and domestic ofﬁcials will incline toward the President’s properties—and away from their competitors—as a result of his willingness to accept emoluments. That is particularly true in light of the fact that New York and D.C. annually host tens of thousands of ofﬁcials, many of whom live and work in easy walking distance of the plaintiffs’ properties and those belonging to the President.
The plaintiffs have thus shown that they have standing. Some domestic and foreign ofﬁcials will view the President’s pattern of accepting emoluments as a reason to favor his properties. These ofﬁcials will be more inclined to patronize his properties and, necessarily, less inclined to patronize their competitors. And the plaintiffs, as competitors, will thus be placed at a competitive disadvantage in the marketplace. To be sure, it is impossible to say which ofﬁcials, speciﬁcally, will move their business for these reasons alone. But there can be no doubt that the plaintiffs
18

are suffering the very same competitive injury that has led dozens of courts in indis-
tinguishable circumstances to hold that Article III is satisﬁed.4
II.   The zone-of-interests test poses no obstacle here. President Trump defends the decision below on only one other ground: He
contends that the zone-of-interests test requires dismissal even if he is violating the
Constitution and thereby injuring the plaintiffs. But he does not identify any case
from this Court or the Supreme Court that was dismissed on zone-of-interest
grounds where the plaintiffs aimed to stop the violation of a structural constitutional
provision and had Article III standing to do so. Nor does he deny that such claims
“have been the principal source of judicial decisions concerning separation of powers
and checks and balances.” Bond v. United States, 564 U.S. 211, 222 (2011).
So how could the zone-of-interests test bar this equitable suit? The answer he
gives proceeds in two parts. First, he tries to hold the plaintiffs to a higher standard,
4 In passing, the President suggests that any harm resulting from his illegal conduct is outweighed by “other beneﬁts.” Pres. Br. 28. But even to the extent such “other beneﬁts” exist, they cannot “negate standing.” Denney v. Deutsche Bank AG, 443 F.3d 253, 265 (2d Cir. 2006). Although the President relies on Texas v. United States, 787 F.3d 733, 750 (5th Cir. 2015), the logic of that case is foreclosed by Denney. And even if it weren’t, Texas is inapplicable, since the “costs and beneﬁts” do not “arise from the same transaction” and there is no proof that they are “offsetting.” Id.
More important, the fact that some ofﬁcials may seek to avoid illegal conduct by declining to patronize his properties is not an offsetting “beneﬁt” to the plaintiffs. By analogy, imagine if an antitrust defendant argued that the plaintiff lacked Article III standing because some market participants might favor the plaintiff’s goods out of a principled objection to companies engaged in monopolistic behavior. That argument would be rejected out of hand. And so it should be here.
19

claiming that the test is more rigorous for constitutional claims. Second, he advances a cramped account of what the Emoluments Clauses mean and why they exist. He is wrong on both fronts. Recent cases make clear that the zone-of-interests test does not erect any barrier (much less a heightened one) to equitable claims alleging structural constitutional violations. The Court should therefore reject the President’s argument on that ground alone. Alternatively, the Court could simply assume the zone-of-interests test applies and hold that the plaintiffs satisfy its requirements here.
A.   Far from imposing a heightened requirement, the zone-ofinterests test poses no obstacle for equitable claims alleging structural constitutional violations.
Quoting a 26-year-old dissent by Justice Scalia (the one the district court treated as if it were a majority opinion), the President asserts that the zone-of-interests test is “more strictly applied” in constitutional cases than in statutory ones. Pres. Br. 35. But by Justice Scalia’s admission, the Supreme Court “reject[ed]” his analysis. Wyoming v. Oklahoma, 502 U.S. 437, 473 (1992) (Scalia, J., dissenting). There is thus no precedent requiring a heightened version of the test for constitutional claims.
Just the opposite—the precedent forecloses such a requirement. When this Court applied the zone-of-interests test in a case presenting a constitutional claim, it noted that the test is “not a rigorous one” and held that it was easily satisﬁed. Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 91 (2d Cir. 2009). The Selevan Court did so even though that case involved a claim for damages and thus implicated Justice Scalia’s
20

minority view of the test’s core purpose. See Wyoming, 502 U.S. at 473 (Scalia, J., dissenting) (“[T]he ‘zone-of-interests’ test performs the same role as many other judge-made rules circumscribing the availability of damages.”). This case, by contrast, involves only equitable claims, which do not implicate any known purpose for the test.
Since Selevan, moreover, the Supreme Court has issued three important decisions bearing on how the zone-of-interests test should be applied here. These decisions show that the test poses no barrier to equitable claims alleging structural constitutional violations—either because the test has no application to such claims or because it is necessarily satisﬁed by them.
The ﬁrst and most important of these cases is Lexmark International Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014), which the President does not cite. In that case (a unanimous opinion by Justice Scalia), the Supreme Court reexamined the underpinnings of the zone-of-interests test and reoriented it in a way that casts grave doubt on its relevance here. Lexmark clariﬁed that, although the test had “previously been classiﬁed as an aspect of ‘prudential standing,’” it is actually a question of “statutory interpretation” that “does not implicate subject-matter jurisdiction.” Id. at 1387 & nn.3-4. Because the plaintiffs here do not invoke a statute, the zone-of-interests test should not apply at all under a proper reading of Lexmark.
21

A second case, Free Enterprise Fund v. Public Company Accounting Oversight Board, supports this understanding. 561 U.S. 477 (2010) (PCAOB). There, an accounting ﬁrm invoked an equitable cause of action to enforce separation-of-powers principles. Notwithstanding a dispute over the ﬁrm’s prerogative to maintain its claim, not a single Justice even hinted at a zone-of-interests requirement. Instead, the Court unhesitatingly recognized a “private right of action directly under the Constitution to challenge governmental action” violating structural provisions. Id. at 491 n.2. That approach was consistent with Wyoming, which refused to apply the zone-of-interests test to an equitable claim under the dormant Commerce Clause. See 502 U.S. at 473 (Scalia, J., dissenting) (acknowledging that the Court “abandon[ed] the zone-ofinterests test”). As Wyoming and PCAOB show, the Court has moved away from its suggestion—contained in a footnote in a 40-year-old case also involving the dormant Commerce Clause—that the zone-of-interests test applies to equitable claims seeking to enforce structural constitutional provisions. See Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318, 320-21, n.3 (1977). No other Supreme Court case has ever applied the zone-of-interests test to an equitable constitutional claim, prompting one judge to wonder—in an opinion cited favorably by Lexmark—whether Boston Stock Exchange “was simply anomalous.” Ass’n of Battery Recyclers, Inc. v. E.P.A., 716 F.3d 667, 676 n.3 (D.C. Cir. 2013) (Silberman, J., concurring).
22

Despite Lexmark and PCAOB, the President takes the position that a judgemade, “prudential” zone-of-interests test survives those cases and somehow applies to constitutional claims. But even if that were so, a third recent decision—Bond v. United States—illustrates why the test would necessarily be satisﬁed in cases alleging violations of structural provisions. Bond recognizes that the “structural principles secured” by the Constitution are not just ends in themselves; they exist to “protect the individual as well.” 564 U.S. at 222. For that reason, Bond holds that when the Constitution’s structure “is compromised, individuals who suffer otherwise justiciable injury may object,” and courts may “adjudicate [the] claim.” Id. at 220, 223. As we demonstrated in our opening brief—with no response from the President—that principle applies here with full force. See Opening Br. 48-49.
As against all this, the President offers no reason why a prudential zone-ofinterests test should bar an equitable claim alleging violations of a structural provision. Instead, he merely gestures to a few cases applying the test to dormant Commerce Clause claims and insists that the test must therefore apply everywhere and always. Pres. Br. 38-39. But like Selevan, these cases all predate Lexmark, and most of them also predate PCAOB and Bond. Further, although they use the language of the zone-of-interests test, each of these cases is more properly conceptualized postLexmark as enforcing the ancient rule that plaintiffs must assert their own legal rights, not those of third parties. See Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir. 2015)
23

(describing this requirement); see also Lexmark, 134 S. Ct. 1387 n.3 (indicating that the
rule against third-party standing is the only remaining form of “prudential stand-
ing”). Put differently, the dormant Commerce Clause cases cited by the President
rest on the premise that plaintiffs may not challenge laws based solely on their effect
on other people—particularly where the plaintiffs themselves are “not engaged in
interstate commerce.” Cibolo Waste, Inc. v. City of San Antonio, 718 F.3d 469, 475 (5th Cir.
2013).5
In stark contrast, this case presents no third-party-standing problem and the
President does not contend otherwise. The Court would therefore be amply justiﬁed
in holding—consistent with Lexmark, Bond, PCAOB, and Wyoming—that the zone-of-
interests test simply does not apply (or else is necessarily satisﬁed) in a case like this
one, involving equitable claims that allege structural constitutional violations.
5 The President also contends that a parade of horribles would ensue if equitable claims alleging structural constitutional violations could not be dismissed under the zone-of-interests test. Pres. Br. 40-41. That is incorrect. In fact, his hypotheticals illustrate why it is unnecessary to resurrect a “prudential” zone-ofinterests test in this context. First, the third-party-standing doctrine would block Ms. Bond’s family from challenging her incarceration. See Fenstermaker v. Obama, 354 Fed. App’x 452, 454-55 (2d Cir. 2009). Second, vendors who serve the plaintiffs’ businesses would lack Article III standing because they do not compete in the same arena as the President’s properties. See Already, 568 U.S. at 99. Finally, it is unclear why the President thinks it would be so “absurd” for the publishing company he describes to have standing. Pres. Br. 38. In any event, it is hardly apparent that the Constitution would even be violated, or that the publisher would suffer any injury, were the government to publish its accounts in an untimely manner.
24

B.   The plaintiffs’ interests are not “so marginally related to or inconsistent with the purposes” of the Emoluments Clauses that they fall outside the zone of interests.
Even if this Court were to apply the zone-of-interests test, the plaintiffs readily satisfy it. The test “is not meant to be especially demanding.” Clarke, 479 U.S. at 399. It “forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the [legal provision]’” that the claim is impermissible. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). “[T]he beneﬁt of any doubt goes to the plaintiff.” Id.
Here, the President claims that the plaintiffs’ interests in preventing his unlawful proﬁteering fail this standard. But his argument is based on the same implausibly constricted reading of the Emoluments Clauses that forms his defense on the merits. As he sees it, the only thing the Clauses prohibit is bribery in its most blatant form: “engag[ing] in regulatory or other ofﬁcial conduct . . . as a result of having received” governmental emoluments. Pres. Br. 37. In other words, quid pro quo. And the Clauses’ zone of interests and proper sphere of application, he argues, is narrower still: It doesn’t cover those injured by the “quid,” just the “quo.”
This argument is deeply mistaken as an account of the Emoluments Clauses. We explained why in our brieﬁng on the merits below, and our amici do the same on appeal. See generally Niskanen Br.; Historians Br.; Former Ethics Ofﬁcials Br. To make a long story short, these Clauses are more than mere anti-bribery provisions.
25

Their text, history, structure, and purpose show that they are broad prophylactic measures that prohibit the acceptance of any kind of emolument from foreign or domestic governments. Together, they ensure that the President will not seek to proﬁt from his ofﬁce at the expense of the citizenry by adopting a practice of accepting improper governmental payments. As OLC has concluded, these Clauses apply even if the proﬁt comes through commercial transactions, and irrespective of whether an ofﬁcial act was performed in exchange. See 11 Op. O.L.C. 89, 91 n.5 (1987); 17 Op. O.L.C. 114, 117 (1993); see also Former Gov’t Ethics Ofﬁcials Br. 3-13.
On that understanding of the Emoluments Clauses, there is no basis for concluding that the plaintiffs’ interests are so “marginally related to or inconsistent with the purposes implicit in” the Clauses that this case must be dismissed for prudential reasons. Patchak, 567 U.S. at 225. The plaintiffs allege that the President is using his tenure in ofﬁce as an opportunity to enrich himself by accepting ﬁnancial beneﬁts from foreign and domestic governments at his properties. His gain has been their loss. Further, his conduct has invited government ofﬁcials to alter their conduct in ways that directly injure the plaintiffs and implicate the core purposes of the ban on emoluments. The zone-of-interests test requires no more. Although the President would have this Court demand proof that the Framers speciﬁcally “intended these provisions to protect [against] competition” with federal ofﬁcials, Pres Br. 37, “there
26

need be no indication” of a speciﬁc “purpose to beneﬁt the would-be plaintiff” to satisfy the zone-of-interests test. Clarke, 479 U.S. at 399-400.
The President’s position thus fails for a simple reason: the plaintiffs have been directly harmed by the President’s unlawful proﬁteering and his corruption of the market. Their interests make them uniquely well positioned to enforce these Clauses, and in doing so, to vindicate the anti-corruption purposes they serve. The opinion below should be reversed and remanded to allow them an opportunity to do so.6
CONCLUSION The judgment of the district court should be reversed.
6 In the very last paragraph of his brief, the President advances a drive-by attack on the plaintiffs’ cause of action and the availability of equitable relief against him. These are the same arguments he made below and that the district court did not reach, and they are not at issue on appeal. In any event, he is wrong on both counts. As PCAOB shows, the plaintiffs have a cause of action. See Dist. Ct. ECF No. 57, at 53-55; Opp. to MTD in District of Columbia and Maryland v. Trump, No. 17-1596, ECF No. 46, at 50-55, ﬁled Nov. 7, 2017 (D. Md.). And there is no basis to conclude that equitable relief against the President violates the separation of powers. Quite the opposite: separation-of-powers principles illustrate why such review is necessary. See Dist. Ct. ECF No. 57, at 56-57; ECF No. 46 in District of Columbia, at 55-60.
27

June 27, 2018
NORMAN L. EISEN STUART C. MCPHAIL ADAM J. RAPPAPORT LAURA C. BECKERMAN Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W. Washington, DC 20001 (202) 408-5565

Respectfully submitted,
/s/ Deepak Gupta DEEPAK GUPTA JONATHAN E. TAYLOR JOSHUA MATZ DANIEL TOWNSEND Gupta Wessler PLLC 1900 L Street, N.W., Suite 312 Washington, DC 20009 (202) 888-1741 deepak@guptawessler.com

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767

JOSEPH M. SELLERS DANIEL A. SMALL Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Washington, DC 20005 (202) 408-4600 jsellers@cohenmilstein.com

ERWIN CHEMERINSKY* Dean of the School of Law University of California, Berkeley 215 Boalt Hall Berkeley, CA 92697 (510) 642-6483

Counsel for Plaintiffs-Appellants

*Afﬁliations noted for identiﬁcation purposes only

28

CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Local Rule 32.1(a)(4) because this brief contains 6,978 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). This brief complies with the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word 2016 in 14-point Baskerville font.

June 27, 2018

/s/ Deepak Gupta Deepak Gupta Counsel for Plaintiffs-Appellants

CERTIFICATE OF SERVICE I hereby certify that on June 27, 2018, I electronically ﬁled the foregoing brief with the Clerk of the Court for the U.S. Court of Appeals for the Second Circuit by using the CM/ECF system. All participants are registered CM/ECF users, and will be served by the appellate CM/ECF system.
/s/ Deepak Gupta Deepak Gupta

29

 
 Case 18-474, Document 26-1, 04/24/2018, 2287465, Page1 of 297

No.$18'474$

In the United States Court of Appeals for the Second Circuit
____________________________

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF, AND ERIC GOODE,
Plaintiffs-Appellants,

v.

DONALD J. TRUMP, in his ofﬁcial capacity as President of the United States of America,
Defendant-Appellee. ____________________________

On Appeal from the United States District Court for the Southern District of New York
Case No. 17-cv-458 (The Honorable George B. Daniels) _________________________________________________________

JOINT APPENDIX VOLUME I
_________________________________________________________

NORMAN L. EISEN*
STUART C. MCPHAIL* ADAM J. RAPPAPORT*
Citizens for Responsibility and Ethics
in Washington 455 Massachusetts Avenue, N.W. Washington, DC 20001 (202) 408-5565

DEEPAK GUPTA JONATHAN E. TAYLOR JOSHUA MATZ DANIEL TOWNSEND* Gupta Wessler PLLC 1900 L Street, N.W., Suite 312 Washington, DC 20036 (202) 888-1741
deepak@guptawessler.com

April 24, 2018

Counsel for Plaintiffs-Appellants (Additional counsel listed on the next page)

Case 18-474, Document 26-1, 04/24/2018, 2287465, Page2 of 297

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767
*Second Circuit admission pending

JOSEPH M. SELLERS
DANIEL A. SMALL
Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Washington, DC 20005 (202) 408-4600

Case 18-474, Document 26-1, 04/24/2018, 2287465, Page3 of 297
TABLE OF CONTENTS
VOLUME I U.S. District Court for the Southern District of New York docket sheet,
CREW et al. v. Trump, No. 1:17-cv-458-GBD .................................................... JA 1 Second amended complaint (Dkt. 28) ............................................................... JA 18 Declaration of Deepak Gupta (Dkt. 48) ............................................................JA 86
John Mikhail, The Deﬁnition of “Emolument” in English Language and Legal Dictionaries, 1523–1806 (Dkt. 48-1) ................................................................. JA 87 Appendix A: “Emolument” in English Language Dictionaries, 1604–1806 (Dkts. 48-2–48-11) ......................................................................................... JA 124 Declaration of Thomas Colicchio (Dkt. 49) ................................................... JA 256 Declaration of James Mallios (Dkt. 51) ............................................................ JA 263 Declaration of Jill Phaneuf (Dkt. 53) ............................................................... JA 269 Expert declaration of Rachel J. Roginsky (Dkt. 58) ..........................................JA 275 Declaration of Saru Jayaraman (Dkt. 77-1) ...................................................... JA 285
VOLUME II Declaration of Eric Goode (Dkt. 77-2) ............................................................. JA 294 Expert declaration of Christopher C. Muller (Dkt. 77-3) .................................JA 304 District court decision and order (Dkt. 103) ..................................................... JA 324 Judgment (Dkt. 104) ........................................................................................ JA 353 Notice of appeal (Dkt. 105) .............................................................................. JA 354

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT4 o1f 2o9f717
CLOSED,APPEAL,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17−cv−00458−GBD

Citizens for Responsibility and Ethics in Washington v. Trump Assigned to: Judge George B. Daniels Related Case: 1:17−cv−01018−GBD Cause: 28:1346 U.S. Defendant
Plaintiff

Date Filed: 01/23/2017 Date Terminated: 12/21/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Citizens for Responsibility and Ethics in Washington

represented by Daniel A. Small Cohen, Millstein, Hausfeld & Toll, P.L.L.C. 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, DC 20005 (202) 408−4600 Fax: (202)−408−4699 Email: dsmall@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph M. Sellers Cohen Milstein Sellers & Toll PLLC (DC) 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 (202) 408−4600 Fax: (202)−408−4699 Email: jsellers@cohenmilstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Douglas Spurlock Gupta Wessler PLLC 1735 20th Street, NW Washington, DC 20009 202−888−1741 Fax: 202−888−7792 Email: mspurlock@publiccounsel.net TERMINATED: 09/20/2017 LEAD ATTORNEY

Deepak Gupta Gupta Wessler PLLC 1900 L. Street, NW Suite 312 Washington, DC 20036 202−888−1741 Fax: 202−888−7792 Email: deepak@guptawessler.com ATTORNEY TO BE NOTICED

George Fuad Farah Cohen Milstein Sellers & Toll PLLC 88 Pine street, 14th Floor New York, NY 10005 212−838−7797 Fax: 212−838−7745 Email: gfarah@cohenmilstein.com ATTORNEY TO BE NOTICED

JA 1

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT5 o2f 2o9f717

Jonathan Ellis Taylor Gupta Wessler PLLC 1900 L. Street, NW Suite 312 Washington, DC 20036 (202)−888−1741 Fax: 202−888−7792 Email: jon@guptawessler.com ATTORNEY TO BE NOTICED

Robert Abraham Braun Cohen Milstein Sellers & Toll, PLLC Suite 500 1100 New York Ave., NW Washington, DC 20005 (202)−408−4600 Email: rbraun@cohenmilstein.com ATTORNEY TO BE NOTICED

Plaintiff
Restaurant Opportunities Centers (ROC) United, Inc.

represented by George Fuad Farah (See above for address) ATTORNEY TO BE NOTICED

Jonathan Ellis Taylor (See above for address) ATTORNEY TO BE NOTICED

Joseph M. Sellers (See above for address) ATTORNEY TO BE NOTICED

Deepak Gupta (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jill Phaneuf

represented by George Fuad Farah (See above for address) ATTORNEY TO BE NOTICED

Jonathan Ellis Taylor (See above for address) ATTORNEY TO BE NOTICED

Joseph M. Sellers (See above for address) ATTORNEY TO BE NOTICED

Deepak Gupta (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Eric Goode

represented by George Fuad Farah (See above for address) ATTORNEY TO BE NOTICED

Jonathan Ellis Taylor (See above for address) ATTORNEY TO BE NOTICED

Joseph M. Sellers (See above for address)
JA 2

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT6 o3f 2o9f717
ATTORNEY TO BE NOTICED
Deepak Gupta (See above for address) ATTORNEY TO BE NOTICED

V. Movant Bruce Ackerman
Movant Matthew D. Adler
Movant Samuel Bagenstos
Movant Cary Coglianese
Movant Zachary D. Clopton

represented by Andrea Likwornik Weiss Levi Lubarsky Feigenbaum & Weiss LLP 655 Third Avenue. 27th Floor New York, NY 10017 (212) 308−6100 Fax: (212) 308−8830 Email: aweiss@llfwlaw.com ATTORNEY TO BE NOTICED
Gregory Phillip Feit Levi Lubarsky Feigenbaum & Weiss LLP 655 Third Avenue. 27th Floor New York, NY 10017 212 308 6100 Fax: 212 308 8830 Email: gfeit@llfwlaw.com ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED
represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
Gregory Phillip Feit (See above for address)
JA 3

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT7 o4f 2o9f717

ATTORNEY TO BE NOTICED

Movant Seth Davis

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Michael C. Dorf

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Daniel Farber

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Martha A. Field

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Daniel Hemel

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Pamela S. Karlan

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Leah Litman

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED
JA 4

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT8 o5f 2o9f717

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Jenny S. Martinez

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Jonathan S. Masur

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Jon D. Michaels

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Richard Primus

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Eli Savit

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Peter M. Shane

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Scott J. Shapiro

represented by Andrea Likwornik Weiss
(See above for address) JA 5

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT9 o6f 2o9f717

ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant David C. Vladeck

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

Movant Brian Wolfman

represented by Andrea Likwornik Weiss (See above for address) ATTORNEY TO BE NOTICED

Gregory Phillip Feit (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump in his official capacity as President of the United States of America
Amicus Scholar Seth Barrett Tillman

represented by Jean Lin U.S. Dep't of Justice, Civil Div 20 Massachusetts Ave., N.W., 7th Fl. Washington, DC 20530 202 514−3716 Fax: (202) 616−8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brett Shumate U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 (202)−514−2331 Email: brett.a.shumate@usdoj.gov
James R. Powers U.S. Department of Justice 20 Massachusetts Ave., Nw Washington, DC 20530 (202)−353−0543 Email: james.r.powers@usdoj.gov ATTORNEY TO BE NOTICED
represented by Robert William Ray Thompson & Knight, LLP (NYC) 900 Third Avenue New York, NY 10022−3915 212−751−3001 Fax: 212−999−9037 Email: Robert.Ray@tklaw.com ATTORNEY TO BE NOTICED
JA 6

CCaassee: 11:81-74-7c4v-,0D0o4c5u8m-GeBntD26A-1s, o0f4: /0244//1280/1280,12820827:42665P, MPaEgDe1T0 o7f o2f9177

Amicus Sarah P Chayes
Amicus Senator Richard Blumenthal
Amicus Representative John Conyers, Jr. Amicus Former Government Ethics Officers
Amicus Legal Historians
Amicus Judicial Education Project

represented by Ilann M. Maazel Emery Celli Brinckerhoff & Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: imaazel@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emma Lerner Freeman Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue New York, NY 10020 (212)−763−5000 Fax: (212)−763−5001 Email: efreeman@ecbalaw.com ATTORNEY TO BE NOTICED
represented by David H. Gans Constitutional Accountability Center 1200 18th Street, Nw, Suite 501 Washington, DC 20036 202−296−6889 x307 Fax: (202)−296−6985 Email: david@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H. Gans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Tejinder Singh Goldstein & Russell, P.C. 7475 Wisconsin Ave, Suite 850 Bethesda, MD 20814 202−362−0636 Fax: 866−574−2033 Email: tsingh@goldsteinrussell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel John Walker Berger & Montague, P.C. 1622 Locust Street Philadelphia, PA 19103 (215) 875−3000 Fax: (215) 875−4604 Email: dwalker@bm.net ATTORNEY TO BE NOTICED
JA 7

CCaassee: 11:81-74-7c4v-,0D0o4c5u8m-GeBntD26A-1s, o0f4: /0244//1280/1280,12820827:42665P, MPaEgDe1T1 o8f o2f9177

Date Filed 01/23/2017 01/23/2017 01/23/2017 01/23/2017
01/23/2017
01/23/2017 01/23/2017 01/23/2017 01/23/2017
01/23/2017 01/23/2017
01/23/2017 01/24/2017 02/09/2017

# Docket Text
1 COMPLAINT against Donald J. Trump. (Filing Fee $ 400.00, Receipt Number 0208−13224937)Document filed by Citizens for Responsibility and Ethics in Washington.(Spurlock, Matthew) (Entered: 01/23/2017)
2 CIVIL COVER SHEET filed. (Spurlock, Matthew) (Entered: 01/23/2017)
3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Citizens for Responsibility and Ethics in Washington.(Spurlock, Matthew) (Entered: 01/23/2017)
4 FILING ERROR − DEFICIENT PLEADING − SUMMONS REQUEST PDF ERROR − − REQUEST FOR ISSUANCE OF SUMMONS as to Attorney General of the United States, re: 1 Complaint. Document filed by Citizens for Responsibility and Ethics in Washington. (Spurlock, Matthew) Modified on 1/23/2017 (laq). (Entered: 01/23/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Ronnie Abrams. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (laq) (Entered: 01/23/2017)
Magistrate Judge James C. Francis IV is so designated. (laq) (Entered: 01/23/2017)
Case Designated ECF. (laq) (Entered: 01/23/2017)
5 REQUEST FOR ISSUANCE OF SUMMONS as to Donald J. Trump, re: 1 Complaint. Document filed by Citizens for Responsibility and Ethics in Washington. (Spurlock, Matthew) (Entered: 01/23/2017)
***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney to RE−FILE Document No. 4 Request for Issuance of Summons. The filing is deficient for the following reason(s): the defendant must be named on the summons form to be issued;. Re−file the document using the event type Request for Issuance of Summons found under the event list Service of Process − select the correct filer/filers − and attach the correct summons form PDF. (laq) (Entered: 01/23/2017)
6 ELECTRONIC SUMMONS ISSUED as to Donald J. Trump. (laq) (laq). (Entered: 01/23/2017)
7 ORDER: This case has been assigned to me for all purposes. Within two weeks of service of the Summons and Complaint, the parties shall submit a joint letter advising the Court of any contemplated motions, proposing a briefing schedule with respect thereto, and providing any additional information the parties believe may assist the Court in adjudicating the matter. Plaintiff is ordered to serve Defendant with a copy of this Order and to file an affidavit on the Court's Electronic Case Filing (ECF) system certifying that such service has been effectuated. (Signed by Judge Ronnie Abrams on 1/23/2017) (cf) (Entered: 01/23/2017)
8 NOTICE OF APPEARANCE by Jean Lin on behalf of Donald J. Trump. (Lin, Jean) (Entered: 01/23/2017)
9 NOTICE OF APPEARANCE by Matthew Douglas Spurlock on behalf of Citizens for Responsibility and Ethics in Washington. (Spurlock, Matthew) (Entered: 01/24/2017)
10 MOTION for Joseph M. Sellers to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13296555. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Affidavit Declaration of J.Sellers, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order)(Sellers, Joseph) (Entered: 02/09/2017)
JA 8

CCaassee: 11:81-74-7c4v-,0D0o4c5u8m-GeBntD26A-1s, o0f4: /0244//1280/1280,12820827:42665P, MPaEgDe1T2 o9f o2f9177

02/10/2017 02/10/2017 02/14/2017 02/14/2017 02/14/2017 02/14/2017 02/15/2017 02/16/2017
02/16/2017 02/17/2017 02/17/2017 02/17/2017 02/27/2017 04/10/2017

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 10 MOTION for Joseph M. Sellers to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13296555. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/10/2017)
11 ORDER granting 10 Motion for Joseph M. Sellers to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 02/10/2017)
12 MOTION for Deepak Gupta to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13313768. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Text of Proposed Order)(Gupta, Deepak) (Entered: 02/14/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 12 MOTION for Deepak Gupta to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13313768. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/14/2017)
13 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Robert Abraham Braun on behalf of Citizens for Responsibility and Ethics in Washington (Braun, Robert) (Entered: 02/14/2017)
14 AFFIDAVIT OF SERVICE of Summons and Complaint. Donald J. Trump served on 2/3/2017, answer due 4/4/2017. Service was made by Mail. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Receipt − US Attorney, # 2 Receipt − Defendant Donald J. Trump, # 3 Receipt − Attorney General)(Spurlock, Matthew) (Entered: 02/14/2017)
15 ORDER granting 12 Motion for Deepak Gupta to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 02/15/2017)
16 MOTION for Daniel A. Small to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13323914. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Citizens for Responsibility and Ethics in Washington. (Attachments: # 1 Supplement Certificate of Good Standing re Motion for Admission PHV for Daniel Small, # 2 Affidavit Affidavit of Daniel Small re Motion to Admit PHV, # 3 Text of Proposed Order Proposed Order re Daniel Small Motion for Admittance PHV)(Small, Daniel) (Entered: 02/16/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 16 MOTION for Daniel A. Small to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13323914. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 02/16/2017)
17 ORDER granting 16 Motion for Daniel A. Small to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 02/17/2017)
18 JOINT LETTER addressed to Judge Ronnie Abrams from Jean Lin dated February 17, 2017 re: Joint Proposed Schedule. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 02/17/2017)
19 MEMO ENDORSEMENT on re: 18 Letter filed by Donald J. Trump. ENDORSEMENT: SO ORDERED. Donald J. Trump answer due 4/21/2017. (Motions due by 4/21/2017., Responses due by 6/2/2017, Replies due by 6/30/2017.) (Signed by Judge Ronnie Abrams on 2/17/2017) (cf) (Entered: 02/17/2017)
20 BRIEF AMICUS CURIAE OF MARK RICHARDS IN SUPPORT OF DEFENDANT. (sc) (Entered: 02/28/2017)
21 NOTICE OF CHANGE OF ADDRESS by Deepak Gupta on behalf of Citizens for Responsibility and Ethics in Washington. New Address: Gupta Wessler PLLC, 1735
JA 9

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT13 1o0f 2o9f717

04/18/2017
04/18/2017 04/18/2017 04/19/2017 04/19/2017 04/19/2017 05/10/2017
05/10/2017
05/10/2017 05/10/2017 05/31/2017 05/31/2017 06/05/2017 06/09/2017 06/09/2017

20th Street, NW, Washington, DC, USA 20009, (202) 888−1741. (Gupta, Deepak) (Entered: 04/10/2017)

22 FIRST AMENDED COMPLAINT amending 1 Complaint against Donald J. Trump.Document filed by Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers (ROC) United, Inc., Jill Phaneuf. Related document: 1 Complaint filed by Citizens for Responsibility and Ethics in Washington.(Gupta, Deepak) (Entered: 04/18/2017)

23 CONSENT LETTER MOTION for Leave to File First Amended Complaint addressed to Judge Ronnie Abrams from Deepak Gupta dated 04/18/2017. Document filed by Citizens for Responsibility and Ethics in Washington, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Gupta, Deepak) (Entered: 04/18/2017)

24 ORDER granting 23 Letter Motion for Leave to File Document. APPLICATION GRANTED. (Signed by Judge Ronnie Abrams on 4/18/2017) (cf) (Entered: 04/18/2017)

25 JOINT LETTER MOTION for Extension of Time for Briefing of Dispositive Motion addressed to Judge Ronnie Abrams from Jean Lin dated April 19, 2017. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 04/19/2017)

26 ORDER: granting 25 Letter Motion for Extension of Time. Motions due by 6/2/2017. Response due by 7/14/2017. Reply due by 8/11/2017. (Signed by Judge Ronnie Abrams on 4/19/2017) (ap) (Entered: 04/19/2017)

Set/Reset Deadlines: Responses due by 7/14/2017. Replies due by 8/11/2017. (ap) (Entered: 04/19/2017)

27 LETTER MOTION for Leave to File Second Amended Complaint addressed to Judge Ronnie Abrams from Joseph M. Sellers and Jean Lin dated 05/10/2017., LETTER MOTION for Extension of Time to File Defendant's Dispositive Motion addressed to Judge Ronnie Abrams from Joseph M. Sellers and Jean Lin dated 05/10/2017. Document filed by Citizens for Responsibility and Ethics in Washington, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Gupta, Deepak) (Entered: 05/10/2017)

28 SECOND AMENDED COMPLAINT amending 22 Amended Complaint, against Donald J. Trump.Document filed by Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Eric Goode. Related document: 22 Amended Complaint, filed by Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Jill Phaneuf.(Gupta, Deepak) (Entered: 05/10/2017)

29 ORDER granting 27 Letter Motion for Leave to File Document; granting 27 Letter Motion for Extension of Time to File Amended Complaint. APPLICATION GRANTED. (Signed by Judge Ronnie Abrams on 5/10/2017) (cf) (Entered: 05/11/2017)

Set/Reset Deadlines: Motions due by 6/9/2017. Responses due by 7/14/2017 Replies due by 8/11/2017. (cf) (Entered: 05/11/2017)

30 CONSENT LETTER MOTION for Leave to File Excess Pages addressed to Judge Ronnie Abrams from Jean Lin dated May 31, 2017. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 05/31/2017)

31 ORDER granting 30 Letter Motion for Leave to File Excess Pages. Application granted. (Signed by Judge Ronnie Abrams on 5/31/2017) (ras) (Entered: 05/31/2017)

32 NOTICE OF APPEARANCE by Jonathan Ellis Taylor on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Taylor, Jonathan) (Entered: 06/05/2017)

33 NOTICE OF APPEARANCE by James R. Powers on behalf of Donald J. Trump. (Powers, James) (Entered: 06/09/2017)

34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.

Document filed by Donald J. Trump. Responses due by 7/14/2017(Lin, Jean) (Entered:

06/09/2017)

JA 10

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT14 1o1f 2o9f717

06/09/2017 06/16/2017 06/16/2017
06/16/2017 06/27/2017 06/27/2017
06/28/2017 06/30/2017 06/30/2017 06/30/2017

35 MEMORANDUM OF LAW in Support re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. . Document filed by Donald J. Trump. (Lin, Jean) (Entered: 06/09/2017)
36 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13792657. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) Modified on 6/16/2017 (ma). (Entered: 06/16/2017)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 36 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−13792657. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): expired Certificate of Good Standing from VIRGINIA.;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (ma) (Entered: 06/16/2017)
37 MOTION for Leave to File Amicus Curiae Brief . Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Exhibit − Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant)(Ray, Robert) (Entered: 06/16/2017)
38 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) Modified on 6/27/2017 (wb). (Entered: 06/27/2017)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE−FILE Document No. 38 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Certificate of Good Standing from Supreme Court of Virginia;. Re−file the motion as a Motion to Appear Pro Hac Vice − attach the correct signed PDF − select the correct named filer/filers − attach valid Certificates of Good Standing issued within the past 30 days − attach Proposed Order.. (wb) (Entered: 06/27/2017)
39 ORDER granting 37 Letter Motion for Leave to File Document. The letter motion seeking leave to file brief of scholar Seth Barrett Tillman as amicus curiae in support of Defendant is granted. (Signed by Judge Ronnie Abrams on 6/28/2017) (cf) (Entered: 06/28/2017)
40 JOINT LETTER MOTION for Extension of Time to File Response/Reply to Motion to Dismiss addressed to Judge Ronnie Abrams from Joseph Sellers and Jean Lin dated June 30, 2017., JOINT LETTER MOTION for Leave to File Excess Pages to Response/Reply to Motion to Dismiss addressed to Judge Ronnie Abrams from Joseph Sellers and Jean Lin dated June 30, 2017. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Sellers, Joseph) (Entered: 06/30/2017)
41 NOTICE OF CHANGE OF ADDRESS by Deepak Gupta on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. New Address: Gupta Wessler PLLC, 1900 L Street, NW, Suite 312, Washington, DC, USA 20036, (202) 888−1741. (Gupta, Deepak) (Entered: 06/30/2017)
42 NOTICE OF CHANGE OF ADDRESS by Jonathan Ellis Taylor on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. New Address: Gupta Wessler PLLC, 1900 L Street, NW, Suite 312, Washington, DC, USA 20036, (202) 888−1741. (Taylor, Jonathan) (Entered: 06/30/2017)

JA 11

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT15 1o2f 2o9f717

07/05/2017 07/05/2017 07/05/2017
07/06/2017 07/06/2017 07/07/2017 07/07/2017 07/07/2017 07/11/2017 08/04/2017
08/04/2017 08/04/2017 08/04/2017

43 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) (Entered: 07/05/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 43 MOTION for Joshua Michael Blackman to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 07/05/2017)
44 ORDER granting in part and denying in part 40 Letter Motion for Extension of Time to File Response/Reply; granting in part and denying in part 40 Letter Motion for Leave to File Excess Pages. The parties' request is granted in part. Plaintiffs' Response to Defendant's Motion to Dismiss is due on August 4, 2017. Defendant's Reply is due on September 11, 2017. No further adjournments will be granted absent good cause. The parties' proposals with respect to page limits are approved. (Responses due by 8/4/2017, Replies due by 9/11/2017.) (Signed by Judge Ronnie Abrams on 7/5/2017) (cf) (Entered: 07/05/2017)
45 ORDER granting 43 Motion for Joshua Michael Blackman to Appear Pro Hac Vice (HEREBY ORDERED by Judge Ronnie Abrams)(Text Only Order) (Abrams, Ronnie) (Entered: 07/06/2017)
46 CONSENT LETTER MOTION for Extension of Time and for Reconsideration of the Court's July 5, 2017 Order addressed to Judge Ronnie Abrams from Jean Lin dated July 6, 2017. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 07/06/2017)
47 ORDER granting 46 Letter Motion for Extension of Time. In light of the parties' agreement and the factors noted below, the Government's application is granted. (Signed by Judge Ronnie Abrams on 7/7/2017) (cf) (Entered: 07/07/2017)
Set/Reset Deadlines: Replies due by 9/22/2017. (cf) (Entered: 07/07/2017)
***DELETED DOCUMENT. Deleted document number 48 MEMO ENDORSEMENT. The document was incorrectly filed in this case. (ap) (Entered: 07/07/2017)
NOTICE OF CASE REASSIGNMENT to Judge George B. Daniels. Judge Ronnie Abrams is no longer assigned to the case. (ma) (Entered: 07/11/2017)
48 DECLARATION of Deepak Gupta in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Exhibit Part 1 (Definition of Emolument), # 2 Exhibit Part 2 (Definition of Emolument), # 3 Exhibit Part (Definition of Emolument), # 4 Exhibit Part 4 (Definition of Emolument), # 5 Exhibit Part 5 (Definition of Emolument), # 6 Exhibit Part (Definition of Emolument), # 7 Exhibit Part 7 (Definition of Emolument), # 8 Exhibit Part 8 (Definition of Emolument), # 9 Exhibit Part 9 (Definition of Emolument), # 10 Exhibit Part 10 (Definition of Emolument), # 11 Exhibit Part 11 (Definition of Emolument))(Gupta, Deepak) (Entered: 08/04/2017)
49 DECLARATION of Thomas Colicchio in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
50 DECLARATION of Saru Jayaraman in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
51 DECLARATION of James Mallios in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)

JA 12

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT16 1o3f 2o9f717

08/04/2017 08/04/2017 08/04/2017 08/04/2017
08/04/2017
08/04/2017 08/05/2017 08/09/2017 08/11/2017 08/11/2017 08/11/2017 08/11/2017 08/11/2017

52 DECLARATION of Eric Goode in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
53 DECLARATION of Jill Phaneuf in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
54 DECLARATION of Christopher C. Muller, Ph.D. in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
55 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 58 Declaration) − DECLARATION of Rachel J. Roginsky, ISHC in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) Modified on 8/7/2017 (db). (Entered: 08/04/2017)
56 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE 57 Declaration) − MEMORANDUM OF LAW in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. . Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) Modified on 8/7/2017 (db). (Entered: 08/04/2017)
57 MEMORANDUM OF LAW in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. CORRECTED COPY. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/04/2017)
58 DECLARATION of Rachel J. Roginsky, ISHC in Opposition re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim.. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Gupta, Deepak) (Entered: 08/05/2017)
59 ORDER: Oral argument on Defendant's motion to dismiss filed in the above−reference action is scheduled for October 18, 2017 at 10:30 a.m. ( Oral Argument set for 10/18/2017 at 10:30 AM before Judge George B. Daniels.) (Signed by Judge George B. Daniels on 8/9/2017) (mro) (Entered: 08/09/2017)
60 NOTICE OF APPEARANCE by Ilann M. Maazel on behalf of Sarah P Chayes. (Maazel, Ilann) (Entered: 08/11/2017)
61 NOTICE OF APPEARANCE by Emma Lerner Freeman on behalf of Sarah P Chayes. (Freeman, Emma) (Entered: 08/11/2017)
62 MOTION to File Amicus Brief of Amica Curiae Sarah P. Chayes in Support of the Plaintiff. Document filed by Sarah P Chayes. (Attachments: # 1 Exhibit Brief of Amica Curiae Sarah P. Chayes in Support of Plaintiffs)(Maazel, Ilann) (Entered: 08/11/2017)
63 MOTION for Leave to File Amicus Brief of Senator Richard Blumenthal and Representative John Conyers, Jr., as Amici Curiae in Support of Plaintiffs. Document filed by Richard Blumenthal, John Conyers, Jr. (Attachments: # 1 Exhibit Brief of Senator Richard Blumenthal and Representative John Conyers, Jr., as Amici Curiae in Support of Plaintiffs)(Gans, David) (Entered: 08/11/2017)
64 LETTER MOTION to File Amicus Brief of Scholars of Administrative Law, Constitutional Law, and Federal Jurisdiction in Support of Plaintiffs addressed to Judge George B. Daniels from Andrea Likwornik Weiss dated August 11, 2017. Document filed by Bruce Ackerman, Matthew D. Adler, Samuel Bagenstos, Cary
JA 13

CaCsaes:e11:187-4-c7v4-,0D04o5c8u-mGeBnDt 26A-s1,o0f:40/244/1/280/21081, 8220827:24665P,MPaEgDeT17 1o4f 2o9f717

08/11/2017
08/11/2017
08/11/2017 08/11/2017 08/11/2017 08/11/2017 08/11/2017 08/15/2017 08/15/2017 08/15/2017 08/15/2017 08/15/2017

Coglianese, Zachary D. Clopton, Seth Davis, Michael C. Dorf, Daniel Farber, Martha A. Field, Daniel Hemel, Pamela S. Karlan, Leah Litman, Jenny S. Martinez, Jonathan S. Masur, Jon D. Michaels, Richard Primus, Eli Savit, Peter M. Shane, Scott J. Shapiro, David C. Vladeck, Brian Wolfman. (Attachments: # 1 Exhibit Brief of Amici Curiae)(Weiss, Andrea) (Entered: 08/11/2017)
65 NOTICE OF APPEARANCE by Andrea Likwornik Weiss on behalf of Bruce Ackerman, Matthew D. Adler, Samuel Bagenstos, Zachary D. Clopton, Cary Coglianese, Seth Davis, Michael C. Dorf, Daniel Farber, Martha A. Field, Daniel Hemel, Pamela S. Karlan, Leah Litman, Jenny S. Martinez, Jonathan S. Masur, Jon D. Michaels, Richard Primus, Eli Savit, Peter M. Shane, Scott J. Shapiro, David C. Vladeck, Brian Wolfman. (Weiss, Andrea) (Entered: 08/11/2017)
66 NOTICE OF APPEARANCE by Gregory Phillip Feit on behalf of Bruce Ackerman, Matthew D. Adler, Samuel Bagenstos, Zachary D. Clopton, Cary Coglianese, Seth Davis, Michael C. Dorf, Daniel Farber, Martha A. Field, Daniel Hemel, Pamela S. Karlan, Leah Litman, Jenny S. Martinez, Jonathan S. Masur, Jon D. Michaels, Richard Primus, Eli Savit, Peter M. Shane, Scott J. Shapiro, David C. Vladeck, Brian Wolfman. (Feit, Gregory) (Entered: 08/11/2017)
67 NOTICE OF APPEARANCE by Tejinder Singh on behalf of Former Government Ethics Officers. (Singh, Tejinder) (Entered: 08/11/2017)
68 NOTICE OF APPEARANCE by David H. Gans on behalf of Richard Blumenthal, John Conyers, Jr. (Gans, David) (Entered: 08/11/2017)
69 NOTICE OF APPEARANCE by Daniel John Walker on behalf of Legal Historians. (Walker, Daniel) (Entered: 08/11/2017)
70 MOTION for Leave to File Brief of Amicus Curiae By Certain Legal Historians on Behalf of Plaintiffs . Document filed by Legal Historians. (Attachments: # 1 Exhibit A, # 2 Certificate of Service, # 3 Text of Proposed Order)(Walker, Daniel) (Entered: 08/11/2017)
71 MOTION to File Amicus Brief . Document filed by Former Government Ethics Officers. (Attachments: # 1 Exhibit Amicus brief, # 2 Certificate of Service)(Singh, Tejinder) (Entered: 08/11/2017)
72 ORDER granting 71 Motion to File Amicus Brief: The Motion for Leave to file Brief of Amici Curiae by former government ethics officers in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 71. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)
73 ORDER granting 70 Motion for Leave to File Document: The Motion for Leave to file Brief of Amici Curiae by certain legal historians in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 70. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)
74 ORDER granting 64 Letter Motion to File Amicus Brief: The Motion for Leave to file Brief of Amici Curiae by scholars of administrative law, constitutional law, and federal jurisdiction in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 64. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)
75 ORDER: granting 63 Letter Motion for Leave to File Document. The Motion for Leave to file Brief of Amici Curiae by Senator Richard Blumenthal and Representative John Conyers, Jr. in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 63. (Signed by Judge George B. Daniels on 8/15/2017) (ap) (Entered: 08/15/2017)
76 ORDER granting 62 Motion to File Amicus Brief: The Motion for Leave to file Brief of Amicus Curiae by Sarah P. Cha yes in support of Plaintiffs' Opposition to Defendant's Motion to Dismiss is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 62. (Signed by Judge George B. Daniels on 8/15/2017) (jwh) (Entered: 08/15/2017)
JA 14

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08/25/2017
08/25/2017
08/31/2017 09/18/2017 09/19/2017 09/19/2017 09/19/2017 09/19/2017 09/19/2017
09/19/2017 09/19/2017 09/20/2017

77 NOTICE of Errata re: 54 Declaration in Opposition to Motion, 50 Declaration in Opposition to Motion, 52 Declaration in Opposition to Motion,. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Errata Corrected Declaration of Saru Jayaraman, # 2 Errata Corrected Declaration of Eric Goode, # 3 Errata Corrected Declaration of Christopher C. Muller)(Gupta, Deepak) (Entered: 08/25/2017)
78 LETTER addressed to Judge George B. Daniels from Deepak Gupta dated 08/25/2017 re: Second Circuit's decision in Centro De Law v. Town of Oyster Bay. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Exhibit Second Circuit's Decision in Centro de Law v. Town of Oyster Bay)(Gupta, Deepak) (Entered: 08/25/2017)
79 NOTICE OF APPEARANCE by George Fuad Farah on behalf of Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Farah, George) (Entered: 08/31/2017)
80 MOTION for Matthew Spurlock to Withdraw as Attorney . Document filed by Citizens for Responsibility and Ethics in Washington. Return Date set for 9/18/2017 at 04:00 PM.(Spurlock, Matthew) (Entered: 09/18/2017)
81 MOTION for Carrie Severino to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14145588. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Judicial Education Project. (Attachments: # 1 Declaration, # 2 Certificate of Good Standing, # 3 Text of Proposed Order)(Ray, Robert) (Entered: 09/19/2017)
82 MOTION for Leave to Appear − For Judicial Education Project to Appear and Join in the Amicus Brief previously filed on behalf of Tillman. Document filed by Scholar Seth Barrett Tillman.(Ray, Robert) (Entered: 09/19/2017)
83 MEMORANDUM OF LAW in Support re: 82 MOTION for Leave to Appear − For Judicial Education Project to Appear and Join in the Amicus Brief previously filed on behalf of Tillman. . Document filed by Scholar Seth Barrett Tillman. (Ray, Robert) (Entered: 09/19/2017)
84 MOTION for Leave to File −Motion of Scholar Seth Barrett Tillman and Judicial Education Project for Leave to file Response to Amici Curiae by Certain Legal Historians. Document filed by Scholar Seth Barrett Tillman.(Ray, Robert) (Entered: 09/19/2017)
85 MEMORANDUM OF LAW in Support re: 84 MOTION for Leave to File −Motion of Scholar Seth Barrett Tillman and Judicial Education Project for Leave to file Response to Amici Curiae by Certain Legal Historians. . Document filed by Scholar Seth Barrett Tillman. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M part 1, # 15 Exhibit M part 2, # 16 Exhibit M part 3, # 17 Exhibit M part 4, # 18 Exhibit M part 5, # 19 Exhibit M part 6, # 20 Exhibit M part 7, # 21 Exhibit M part 8, # 22 Exhibit M part 9, # 23 Exhibit N, # 24 Exhibit O, # 25 Exhibit P part 1, # 26 Exhibit P part 2, # 27 Exhibit P part 3, # 28 Exhibit P part 4, # 29 Exhibit Q, # 30 Exhibit R)(Ray, Robert) (Entered: 09/19/2017)
86 MOTION of Amicus Curiae Scholar Seth Barrett Tillman and Proposed Amicus Curiae Judicial Education Project for Leave to be heard at Oral Arguments. Document filed by Scholar Seth Barrett Tillman.(Ray, Robert) (Entered: 09/19/2017)
87 MEMORANDUM OF LAW in Support re: 86 MOTION of Amicus Curiae Scholar Seth Barrett Tillman and Proposed Amicus Curiae Judicial Education Project for Leave to be heard at Oral Arguments. . Document filed by Scholar Seth Barrett Tillman. (Ray, Robert) (Entered: 09/19/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 81 MOTION for Carrie Severino to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208−14145588. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are
JA 15

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09/20/2017 09/20/2017 09/21/2017 09/21/2017 09/21/2017
09/21/2017 09/22/2017 09/27/2017 10/03/2017 10/07/2017
10/18/2017
10/25/2017 11/08/2017

no deficiencies. (wb) (Entered: 09/20/2017)
88 ORDER FOR ADMISSION PRO HAC VICE granting 81 Motion for Carrie Severino to Appear Pro Hac Vice. (Signed by Judge George B. Daniels on 9/20/2017) (jwh) (Entered: 09/20/2017)
89 MEMO ENDORSEMENT granting 80 Motion to Withdraw as Attorney. ENDORSEMENT: SO ORDERED. (Attorney Matthew Douglas Spurlock terminated.) (Signed by Judge George B. Daniels on 9/20/2017) (jwh) (Entered: 09/20/2017)
91 ORDER denying 84 Motion for Leave to File Document: The motion filed by amicus curiae Seth Barrett Tillman and Judicial Education Project ("JEP") for leave to respond to the brief of amici curiae by certain legal historians is DENIED. (Signed by Judge George B. Daniels on 9/21/2017) (jwh) (Entered: 09/21/2017)
***DELETED DOCUMENT. Deleted document number 90 Order. The document was incorrectly filed in this case. (jwh) (Entered: 09/21/2017)
92 ORDER granting 82 Motion for Leave to Appear and join in the amicus brief filed on Tillman's behalf: The motion filed by amicus curiae Seth Barrett Tillman and Judicial Education Project ("JEP") seeking leave for JEP to appear jointly with Tillman as amici curiae and for JEP to join in the amicus brief filed on Tillman's behalf is GRANTED. (Signed by Judge George B. Daniels on 9/21/2017) (jwh) (Entered: 09/21/2017)
93 ORDER denying 86 Motion to be heard at Oral Argument: The motion filed by amicus curiae Seth Barrett Tillman and Judicial Education Project ("JEP") requesting leave to be heard at oral argument is DENIED. (Signed by Judge George B. Daniels on 9/21/2017) (jwh) (Entered: 09/21/2017)
94 REPLY MEMORANDUM OF LAW in Support re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. . Document filed by Donald J. Trump. (Lin, Jean) (Entered: 09/22/2017)
95 NOTICE OF APPEARANCE by Brett Shumate on behalf of Donald J. Trump. (Shumate, Brett) (Entered: 09/27/2017)
96 LETTER addressed to Judge George B. Daniels from Daniel J. Walker dated October 3, 2017 re: Docket No. 70. Document filed by Legal Historians.(Walker, Daniel) (Entered: 10/03/2017)
97 LETTER addressed to Judge George B. Daniels from Deepak Gupta dated 10/7/2017 re: Supplemental Authority (Report of Office of Congressional Ethics). Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. (Attachments: # 1 Office of Congressional Ethics Report)(Gupta, Deepak) (Entered: 10/07/2017)
Minute Entry for proceedings held before Judge George B. Daniels: Oral Argument held on 10/18/2017 re: 34 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. filed by Donald J. Trump. Plaintiff Counsel: Deepak Gupta, Jonathan E. Taylor, Joshua Matz, Joseph M. Sellers, Daniel Townsend; Defense Counsel: Jean Lin, Brett Shumate Also Present: Norm Eisen, Noah Bookbinder, Zephyr Teachout, and Court Reporter present. (Vega, Elizabeth) (Entered: 10/18/2017)
98 LETTER addressed to Judge George B. Daniels from Brett Shumate dated 10/25/2017 re: correcting misstatement made during Oct. 18, 2017, hearing. Document filed by Donald J. Trump.(Shumate, Brett) (Entered: 10/25/2017)
99 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/18/2017 before Judge George B. Daniels. Court Reporter/Transcriber: Alena Lynch, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/29/2017. Redacted Transcript Deadline set for 12/11/2017. Release of Transcript Restriction set for 2/6/2018.(McGuirk, Kelly) (Entered: 11/08/2017)

JA 16

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11/08/2017
11/24/2017 12/01/2017
12/21/2017 12/21/2017 12/21/2017
12/21/2017 02/16/2018
02/16/2018 02/16/2018

100 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/18/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/08/2017)
101 LETTER addressed to Judge George B. Daniels from Jean Lin dated November 24, 2017 re: Post−hearing Development. Document filed by Donald J. Trump.(Lin, Jean) (Entered: 11/24/2017)
102 LETTER addressed to Judge George B. Daniels from Deepak Gupta dated December 1, 2017 re: Defendant's Letter dated November 24, 2017 (Docket No. 101). Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc..(Gupta, Deepak) (Entered: 12/01/2017)
103 MEMORANDUM DECISION AND ORDER. Defendant's motion to dismiss is GRANTED. Accordingly, Plaintiffs' claims and this case are DISMISSED. So ordered. Granting 34 Motion to Dismiss. (Signed by Judge George B. Daniels on 12/21/2017) (rjm) (Entered: 12/21/2017)
Transmission to Judgments and Orders Clerk. Transmitted re: 103 Order on Motion to Dismiss to the Judgments and Orders Clerk. (rjm) (Entered: 12/21/2017)
104 CLERK'S JUDGMENT: That for the reasons stated in the Court's Memorandum Decision and Order dated December 21, 2017, Defendant's motion to dismiss for lack of standing under Rule 12(b)(1) is granted; accordingly, Plaintiffs' claims and this case are dismissed. (Signed by Clerk of Court Ruby Krajick on 12/21/2017) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 12/21/2017)
Terminate Transcript Deadlines (dt) (Entered: 12/21/2017)
105 NOTICE OF APPEAL from 103 Order on Motion to Dismiss, 104 Clerk's Judgment,. Document filed by Citizens for Responsibility and Ethics in Washington, Eric Goode, Jill Phaneuf, Restaurant Opportunities Centers (ROC) United, Inc.. Filing fee $ 505.00, receipt number 0208−14710868. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Gupta, Deepak) (Entered: 02/16/2018)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 105 Notice of Appeal. (tp) (Entered: 02/16/2018)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 105 Notice of Appeal, filed by Eric Goode, Restaurant Opportunities Centers (ROC) United, Inc., Citizens for Responsibility and Ethics in Washington, Jill Phaneuf were transmitted to the U.S. Court of Appeals. (tp) (Entered: 02/16/2018)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant.

Civil Action No. 1:17-cv-00458-RA

SECOND AMENDED COMPLAINT

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TABLE OF CONTENTS
I. NATURE OF THE ACTION .......................................................................................... 1
II. PARTIES, JURISDICTION, AND VENUE ................................................................... 8
III. LEGAL BACKGROUND............................................................................................... 11
IV. RELEVANT FACTS ....................................................................................................... 14 A. Defendant’s Foreign Emoluments Clause Violations ........................................... 14 New York’s Trump Tower .......................................................................... 16 Washington, D.C.’s Trump International Hotel ......................................... 18 Trump World Tower ................................................................................... 23 Gratuitous Chinese Trademarks.................................................................. 26 International Versions and Distribution of “The Apprentice” and Its Spinoffs......................................................................................................... 28 Other Foreign Connections, Properties, and Businesses ............................. 28 Other Domestic and International Properties and Businesses..................... 30 B. Defendant’s Domestic Emoluments Clause Violations ........................................ 30 C. Post-Inauguration Premium for Defendant’s Goods and Services ....................... 34 D. CREW’s Injuries ................................................................................................... 34 Diversion of CREW’s Communications Resources .................................... 35 Diversion of CREW’s Legal Resources ....................................................... 36 Diversion of CREW’s Research Resources ................................................. 39 Perceptible Impairment of CREW’s Programmatic Functions and Fundamental Services .................................................................................. 43 E. ROC United’s Members’ Injuries ........................................................................ 45 Injuries to ROC United’s Restaurant Members ......................................... 47 Injuries to ROC United’s Worker Members ............................................... 50 Injuries to ROC United’s COLORS Restaurants....................................... 52 F. Jill Phaneuf’s Injuries ............................................................................................ 53 G. Eric Goode’s Injuries ............................................................................................ 54 I. Plaintiffs’ Injuries Warrant an Equitable Remedy................................................ 56 J. Other Injuries........................................................................................................ 58
V. CLAIMS ........................................................................................................................... 59
VI. PRAYER FOR RELIEF .................................................................................................. 66
i
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Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers

(ROC) United, Inc., Jill Phaneuf, and Eric Goode (“Plaintiffs”), bring this action against Donald

J. Trump, in his official capacity as President of the United States, and allege as follows:

I. NATURE OF THE ACTION

1.

This case arises out of an unprecedented threat to two critical, and closely

related, anti-corruption provisions in the Constitution aimed at ensuring that the President of the

United States faithfully serves the people—free from the compromising effects of financial

inducements from foreign nations, foreign leaders, individual states in the Union, Congress, or

other parts of the federal government. Never before have the people of the United States elected

a President with business interests as vast, complicated, and secret as those of President Donald J.

Trump. Now that he has been sworn into office as the 45th President of the United States,

Defendant’s business interests are creating countless conflicts of interest, as well as unprecedented

influence by foreign governments, and have resulted and will further result in numerous

violations of Article I, Section 9, Clause 8 of the United States Constitution, the “Foreign

Emoluments Clause,” and Article II, Section 1, Clause 7 of the United States Constitution, the

“Domestic Emoluments Clause.”

2.

The Foreign Emoluments Clause provides that “no Person holding any Office

of Profit or Trust under [the United States], 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.” Congress has not consented to Defendant’s receipt of the presents or emoluments

at issue here.

3.

Defendant’s violations of the Foreign Emoluments Clause pose a grave threat to

the United States and its citizens. As the Framers were aware, private financial interests can

1
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subtly sway even the most virtuous leaders, and entanglements between American officials and

foreign powers could pose a creeping, insidious threat to the Republic. The Foreign Emoluments

Clause was forged of the Framers’ hard-won wisdom. It is no relic of a bygone era, but rather an

expression of insight into the nature of the human condition and the essential preconditions of

self-governance. And applied to Defendant’s diverse dealings, the text and purpose of the

Foreign Emoluments Clause speak as one: this cannot be allowed.

4.

Ultimately, the theory of the Foreign Emoluments Clause—grounded in English

history and the Framers’ experience—is that a federal officeholder who receives something of

value from a foreign power can be imperceptibly induced to compromise what the Constitution

insists be his or her exclusive loyalty: the best interest of the United States of America. And

rather than guard against such corruption by punishing it after-the-fact, the Framers concluded

that the proper solution was to write a strict prophylactic rule into the Constitution itself, thereby

ensuring that shifting political imperatives and incentives never undo this vital safeguard of

freedom.1

5.

The Domestic Emoluments Clause, which is narrower than the Foreign

Emoluments Clause, provides: “The President shall, at stated Times, receive for his Services, a

Compensation, which shall neither be increased nor diminished during the Period for which he

shall have been elected, and he shall not receive within that Period any other Emolument from

1 Norman L. Eisen, Richard Painter & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump (Dec. 16, 2016), http://brook.gs/2hGIMbW; see also Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 18 (1994) (“Those who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty. That judgment might be biased, and that loyalty divided, if they received financial benefits from a foreign government.”).
2
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the United States, or any of them.”2

6.

Like the Foreign Emoluments Clause, the Domestic Emoluments Clause arose

to protect the government from corruption. The Founders intended that the Domestic

Emoluments Clause guarantee that Congress, other parts of the federal government, and the

states “can neither weaken [the President’s] fortitude by operating on his necessities, nor corrupt

his integrity by appealing to his avarice.”3 The Founders further intended the Clause to protect

against self-dealing: insuring the President could not receive any benefit from his Office other

than as the fixed compensation prescribed in advance by Congress.

7.

Defendant has violated the Constitution since the opening moments of his

presidency and is poised to do so continually for the duration of his administration. Specifically,

Defendant has committed and will commit violations of both the Foreign Emoluments Clause

and the Domestic Emoluments Clause, involving at least: (a) leases held by foreign-government-

owned entities in New York’s Trump Tower; (b) room reservations, restaurant purchases, the use

of facilities, and the purchase of other services and goods by foreign governments and diplomats,

state governments, and federal agencies, at Defendant’s Washington, D.C. hotel and restaurant;

(c) hotel stays, property leases, restaurant purchases, and other business transactions tied to

foreign governments, state governments, and federal agencies at other domestic and international

establishments owned, operated, or licensed by Defendant; (d) property interests or other

business dealings tied to foreign governments in numerous other countries; (e) payments from

foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the

2 This provision is also referred to as the “Presidential Emoluments Clause.” Although it was originally designated as Article II, Section 1, Clause 7, it is now sometimes referred to as Article II, Section 1, Clause 6, because the original third clause of Article II, Section 1 was superseded by the Twelfth Amendment.
3 The Federalist No. 73 (Alexander Hamilton).

3
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television program “The Apprentice” and its spinoffs; and (f) continuation of the General

Services Administration lease for Defendant’s Washington, D.C. hotel despite Defendant’s

breach, and potential provision of federal tax credits in connection with the same property.

8.

Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) is a

nonprofit, nonpartisan organization founded in 2002 that works on behalf of the public to foster

an ethical and accountable government and reduce the influence of money in politics. CREW

has continuously sought to advance its mission through educating the public, advocacy, and

enforcement.

9.

CREW brings this action to stop and prevent the violations of the Emoluments

Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal

to avoid these and other violations of the Emoluments Clauses, CREW has been significantly

injured and will continue to be injured unless this Court orders relief. CREW has been forced to

divert essential and limited resources—including time and money—from other important

matters that it ordinarily would have been addressing to the Emoluments issues involving

Defendant. Defendant’s conduct is in direct conflict with CREW’s mission. CREW’s work on

its core mission has been rendered more difficult, time consuming, and expensive due to the

ongoing Emoluments violations. Moreover, without declaratory and injunctive relief from this

Court, CREW will continue to suffer this diversion and depletion of resources for the remainder

of Defendant’s administration. CREW will essentially be forced into the role of combatting and

educating the public regarding Defendant’s Emoluments violations, rather than continuing its

mission of serving as a watchdog with respect to all ethical issues involving all parts of our

government.

10. CREW is further injured because Defendant’s activities impair the ability of

CREW to carry out its mission through its prior core activities: exposing the corrupting 4
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influence of money through research, public education, and, where necessary, litigation. Defendant’s novel use of an opaque and sprawling business organization to collect funds creates a dangerous new avenue for corruption that resists detection. While CREW previously performed important work by relying on official filings, public disclosures, and other readily available documents, Defendant’s activities deny CREW the information such sources provide, and that CREW uses to raise public awareness, further impeding and inhibiting CREW’s daily activities and operations. To carry out its mission and continue its work, CREW must engage in more time consuming, more expensive, and less effective research to continue bringing corruption to light, diverting resources from its other projects.
11. Plaintiff Restaurant Opportunities Centers (ROC) United, Inc. (“ROC United”) is a nonprofit, nonpartisan organization founded in 2008. ROC United has nearly 25,000 restaurant-employee members; through its project Restaurants Advancing Industry Standards in Employment (“RAISE”), it has over 200 restaurant members; and through its project Diners United, it has about 3,000 diner members. ROC United engages workers, employers, and consumers to improve wages and working conditions in the restaurant industry, including by providing job training, placement, leadership development, civic engagement, legal support, and policy advocacy. In addition, ROC United owns and operates a restaurant in New York City, and is opening another one soon in Washington, D.C.
12. ROC United brings this action on behalf of its members to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal to avoid these and other violations of the Emoluments Clauses, ROC United members have been significantly injured and will continue to be injured unless this Court grants relief.
5
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13. ROC United’s members include restaurants and the employees of restaurants that compete with restaurants owned by Defendant and with restaurants located in hotels and other properties owned by Defendant or in which Defendant has a financial interest, including in Washington, D.C. and New York City. In violation of the Foreign and Domestic Emoluments Clauses, Defendant has received gifts or emoluments from foreign states or instrumentalities and emoluments from the United States and state and local governments in the form of payments to Defendant’s hotels, restaurants, and other properties and to restaurants located in Defendants’ hotels and other properties. As competitors and employees of competitors of restaurants located in Defendant’s hotels and other properties, including restaurants owned by Defendant, ROC United’s members have been injured by these payments due to lost business, wages, and tips.
14. ROC United also brings this action on its own behalf to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit that impact ROC United’s own restaurant. ROC United’s “COLORS” restaurant competes with restaurants owned by Defendant and with restaurants located in hotels and other properties owned by Defendant or in which Defendant has a financial interest. In violation of the Foreign and Domestic Emoluments Clauses, Defendant has received gifts or emoluments from foreign states or instrumentalities and emoluments from the United States and state and local governments in the form of payments to Defendant’s hotels, restaurants, and other properties and to restaurants located in Defendants’ hotels and other properties. As a competitor of restaurants located in Defendant’s hotels and other properties, including restaurants owned by Defendant, ROC United has been injured by these payments due to lost business, and will continue to be injured by such payments unless this Court grants relief.
15. Plaintiff Jill Phaneuf is an individual resident of Washington, D.C. She has worked for hotel owners in Washington, D.C. for several years and has held various roles
6
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relating to the performance of those hotels. In her current position, she works with a hospitality company to book events for two hotels that are flagged as Kimptons: the Carlyle Hotel, situated just north of Dupont Circle, and the Glover Park Hotel, situated near Massachusetts Avenue, NW, which is colloquially referred to as “Embassy Row.” She specifically seeks to book embassy functions, political functions involving foreign governments, and functions for organizations that are connected to foreign governments, in addition to other events in the Washington, D.C. market. Her compensation is directly tied to a percentage of the gross receipts of the events that she books for the hotels.
16. Ms. Phaneuf brings this action to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal to avoid violations of the Emoluments Clauses, Ms. Phaneuf will be injured without relief from this Court.
17. The hotels for which Ms. Phaneuf seeks to book embassy functions and other events compete with hotels owned by Defendant or in which Defendant has a financial interest. Defendant has received payments from foreign states or instrumentalities and from the United States and state and local governments, through Defendant’s hotels, restaurants, and other properties. As an individual working to book events at competitor hotels, Ms. Phaneuf will be injured due to loss of commission-based income.
18. Plaintiff Eric Goode resides in New York, New York. Mr. Goode is the owner of several celebrated hotels, restaurants, bars, and event spaces in New York. These include the Maritime Hotel located in Chelsea; the Bowery Hotel and Ludlow Hotel, both in the Lower East Side; and the Jane Hotel in the Meatpacking District. Among the restaurants that Mr. Goode owns—several of which are located in hotels—are the Park, Waverly Inn, and Gemma, the last of which is located in the Bowery Hotel. Mr. Goode’s hotels and restaurants have attracted
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multiple foreign government clients and events, and have also hosted U.S. government officials and state officials traveling on official business and thus paying with government funds.
19. Mr. Goode brings this action to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. Mr. Goode’s hotels and restaurants compete with hotels and restaurants owned by Defendant, and with restaurants located in hotels and other properties owned by Defendant, or in which Defendant has a financial interest. As a direct result of Defendant’s refusal to avoid violations of the Emoluments Clauses, Mr. Goode will be injured without relief from this Court.
20. Accordingly, Plaintiffs request that this Court: (a) enter a declaratory judgment declaring that Defendant has violated and will continue to violate the Foreign Emoluments Clause and the Domestic Emoluments Clause; (b) enjoin Defendant from violating both Emoluments Clauses; and (c) enter an injunction requiring Defendant to release financial records sufficient to confirm that Defendant is not engaging in any further transactions that would violate either Emoluments Clause.
II. PARTIES, JURISDICTION, AND VENUE 21. CREW is a nonprofit, nonpartisan corporation organized under the laws of Delaware and exempt from taxation under 26 U.S.C. § 501(c)(3). CREW is committed to protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. CREW advances that mission through education, advocacy, and enforcement. Among other activities, CREW educates the public on ethics and the impact of money in politics by producing reports, publishing blog posts, and issuing press releases. CREW seeks to empower citizens to have an influential voice in
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government decisions and in the governmental decision-making process through the

dissemination of information about public officials and their conduct. CREW also works to

advance reforms in the areas of ethics, campaign finance, lobbying, and transparency, and seeks

to ensure the proper interpretation and enforcement of government ethics laws and other laws

related to corruption and money in politics.

22. To advance its mission, CREW uses a combination of research, litigation,

advocacy, and public education to disseminate information about public officials, their actions,

and the outside influences that have affected those actions. A core part of this work is examining

and exposing special interests that have influenced public officials and elections, and then using

that information to educate the public and voters regarding the integrity of public officials,

candidates for public office, the electoral process, and our system of government.

23. Toward this end, CREW monitors the activities of public officials and

candidates, as well as businesses and others that financially support them, including support

received through campaign contributions, gifts, and businesses or other entities associated with

public officials. CREW regularly reviews public records that disclose the financial benefits

provided to public officials and their business interests, including personal financial-disclosure

forms, campaign-finance reports, travel records, and lobbying reports. CREW further conducts

independent research to uncover financial support for public officials and candidates, reviewing

business records, tax returns, property records, and news reports. CREW’s research also

regularly includes submitting federal and state public-records requests and reviewing the records

obtained.

24. A part of CREW’s work in carrying out its central mission focuses on so-called

“pay-to-play” schemes. Toward that end, CREW looks for correlations between financial

benefits received by public officials and their subsequent conduct. 9

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25. Using the information obtained from public records and independent research,

CREW—through its website, press releases, reports, and other methods of distribution—

publicizes the roles of individuals, groups, and businesses attempting to use financial support to

influence politics and public policy, and the public officials and candidates who accept that

support. In particular, CREW publicizes violations of ethics, campaign finance, and other anti-

corruption laws and rules by those public officials and candidates. CREW also regularly files

complaints with government agencies when it discovers violations of these laws and rules. In

addition, CREW regularly files lawsuits under the Freedom of Information Act, Federal Election

Campaign Act, Administrative Procedures Act, and other statutes to compel government

agencies to properly interpret and enforce anti-corruption, accountability, and transparency laws

and rules, and participates as an amicus curiae in related civil and criminal litigation.

26. By publicizing violations and filing complaints and lawsuits, CREW advances its

mission of keeping the public informed about public officials and candidates and deterring future

violations of these laws and rules.

27. CREW provides services to the public by disseminating the results of CREW’s

extensive investigations, advocating for public access to information about the government and

public officials, and enforcing the right to public access to information, through litigation when

necessary. CREW further provides advice to public officials and reporters on how to expose

government corruption and what legislative reforms are required to combat it.

28. ROC United is a nonprofit, nonpartisan corporation organized under the laws

of New York. ROC United includes its project RAISE, which is its organization of restaurant

members, and its project Diners United, which is its organization of diner members. ROC

United also owns and operates the restaurant COLORS in New York City and Detroit, and will

be opening a location in Washington, D.C. soon. 10

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29. Jill Phaneuf is an individual citizen of Washington, D.C. 30. Eric Goode is an individual citizen of New York, New York. 31. Defendant is the President of the United States of America. He is being sued here in his official capacity as President. 32. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 2201. 33. Venue is proper in the Southern District of New York under 28 U.S.C. § 1391(e)(1). Defendant is “an officer . . . of the United States . . . acting in his official capacity or under color of legal authority,” and the Southern District of New York is a “judicial district” in which “a substantial part of the events or omissions giving rise to the claim occurred,” and where “a substantial part of property that is the subject of the action is situated.” For example, New York’s Trump Tower and Defendant’s “Trump Organization”—both key components of Plaintiffs’ claims—are based in the Southern District of New York.
III. LEGAL BACKGROUND 34. The origins of the “Foreign Emoluments Clause” date back as far as 1651, when the Dutch broke with classic European diplomatic customs and prohibited their foreign ministers from accepting “any presents, directly or indirectly, in any manner or way whatever.” Impressed, the early Americans included similar text—the predecessor for the Foreign Emoluments Clause—in Article 6, Section 1 of the Articles of Confederation: “[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign State.” 35. The foreign anti-emolument provision initially was not included at the Constitutional Convention, but it was added without dissent at the request of Charles Pinckney, who “urged the necessity of preserving foreign Ministers & other officers of the U. S.
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independent of external influence.”4 Edmund Jennings Randolph echoed the anti-corruption purpose of the Foreign Emoluments Clause included in the Constitution: “It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states.”5 The Framers recognized the dangers of foreign influence and corruption, even in situations subtler than quid pro quo bribery, and thus they created a broad constitutional prophylactic applicable to anything of value given by any foreign government to any officer of the United States.
36. The Presidency of the United States is an “Office of Profit or Trust under the United States.”
37. Consistent with the Framers’ intent, the definition of a “present” or “Emolument” under the Foreign Emoluments Clause is properly interpreted in a broad manner, to cover anything of value, monetary or nonmonetary. The text of the clause itself prohibits the receipt of both a “present,” which, presumably, is provided without a return of anything of equal value, and an “Emolument,” which could cover anything else of value, including without limitation payments, transactions granting special treatment, and transactions above marginal cost. The Foreign Emoluments Clause also explicitly prohibits the receipt of “any present [or] Emolument . . . of any kind whatever,” emphasizing the breadth of the things of value covered under the provision.
38. The Foreign Emoluments Clause covers not only a transfer from a king, prince, or foreign State individually, but also any transfer from their instrumentalities and controlled entities. Though not a body with authority to provide controlling interpretations of this

4 2 Farrand, The Records of the Federal Convention of 1787, at 389. 5 3 Farrand, The Records of the Federal Convention of 1787, at 327.
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constitutional text, the U.S. Department of Justice’s Office of Legal Counsel has consistently examined three non-dispositive factors with respect to determining which entities fall within the definition of a “foreign State” under the Foreign Emoluments Clause, always with an eye toward the underlying purpose of preventing corruption and foreign influence: (a) “whether a government is the substantial source of funding for the entity”; (b) “whether a government, as opposed to a private intermediary, makes the ultimate decision regarding the gift or emolument”; and (c) “whether a government has an active role in the management of the entity.”6 It is widely accepted—and has been reaffirmed by the Office of Legal Counsel as recently as 2009—that a “foreign State” under the Foreign Emoluments Clause includes agents and instrumentalities of foreign nations, including local government units within a foreign country.7
39. Just as the Framers sought to stem foreign influence with the Foreign Emoluments Clause, they too sought to stem the system of patronage, influence, and rentextraction that predominated the colonial governors’ offices by means of a Domestic Emoluments Clause specifically targeting the President. The clause provides that the President’s “Compensation” shall not be increased or decreased, and that he may not receive any “other emolument from the United States, or any of them,” during his term of office. Though the clause permits presents from states and the federal government—unlike the Foreign Emoluments Clause—it nonetheless works to ensure that neither can “weaken his fortitude by operating on his necessities, nor corrupt his integrity by appealing to his avarice.” The ban on other emoluments, Alexander Hamilton explained, would ensure that the President would have “no pecuniary
6 Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 8 (2009).
7 Id. at 7; Major James D. Dunn, B-251084, 1993 WL 426335, at *3 (Comp. Gen. Oct. 12, 1993).
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inducement to renounce or desert the independence intended for him by the Constitution.” Further, as recognized by judicial authorities, the ban “addressed the Framers’ concern that the President should not have the ability to convert his or her office for profit.”
40. The Domestic Emoluments Clause proscribes the receipt of additional emoluments only by the President and, unlike the Foreign Emoluments Clause, does not apply to any other federal official. It therefore reflects the Framers’ special concern about ensuring that the Nation’s powerful Chief Executive remains free from the distorting and corrupting influences that might impair his ability to faithfully execute his office.
41. Just as the Foreign Emoluments Clause bars payments not only from foreign states, but also their subdivisions and instrumentalities, the Domestic Emoluments Clause bars payments not only from the federal government and state governments, but also their respective instrumentalities and subdivisions. The Supreme Court has long viewed local governments as “mere[]. . . departments” of the state. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 362 (2009).
IV. RELEVANT FACTS A. Defendant’s Foreign Emoluments Clause Violations 42. Defendant owns and controls hundreds of businesses throughout the world, including hotels and other properties. His sprawling business empire is made up of hundreds of different corporations, limited-liability companies, limited partnerships, and other entities that he owns or controls, in whole or in part, operating in the United States and 20 or more foreign countries.8 Defendant’s businesses are loosely organized under an umbrella known as the “Trump Organization.” However, Defendant’s interests include not only Trump Organization
8 Marilyn Geewax & Maria Hollenhorst, Trump’s Businesses And Potential Conflicts: Sorting It Out, NPR (Dec. 5, 2016, 7:00 AM), http://n.pr/2g2xZDP.
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LLC d/b/a The Trump Organization and The Trump Organization, Inc., both of which are owned solely by Defendant, but also scores of other entities not directly owned by either “Trump Organization” entity but that Defendant personally owns, owns through other entities, and/or controls.9 Defendant also has several licensing agreements that provide streams of income that continue over time. Through these entities and agreements, Defendant personally benefits from business dealings, and Defendant is and will be enriched by any business in which they engage with foreign governments, instrumentalities, and officials.
43. On January 11, 2017 Defendant announced a plan to turn “leadership and management” of the Trump Organization over to his sons Eric Trump and Donald Trump Jr., as well as a longtime company executive.10 But the plan did not include Defendant relinquishing ownership of his businesses or even establishing a blind trust.
44. Defendant continues to own, and be well aware of the activities of, the Trump Organization, other corporations, limited-liability companies, limited partnerships, and other entities in which he retains an ownership interest. Although Defendant established a trust to hold his business assets, Defendant is permitted to obtain distributions from his trust at any time.11 Additionally, Defendant’s son Eric Trump (who is also an advisor to Defendant’s trust) initially indicated that he would not communicate with Defendant concerning his business interests.
9 U.S. Office of Gov’t Ethics, Donald J. Trump 2016 Executive Branch Personnel Public Financial Disclosure Report (May 16, 2016), http://bit.ly/2gBUwIV.
10 Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017), http://nyti.ms/2jG86w8.
11 David Kravitz & Al Shaw, Trump Lawyer Confirms President Can Pull Money From His Businesses Whenever He Wants, ProPublica (April 4, 2017, 5:53 PM), http://bit.ly/2o1OM1C.
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Nevertheless, Eric Trump has acknowledged that he will provide business updates to Defendant on at least a quarterly basis.12
45. Defendant has neither sought nor received “Consent of the Congress” with respect to his receipt of gifts and emoluments from government officials and entities.
New York’s Trump Tower 46. New York’s “Trump Tower” is a mixed-use skyscraper located at 725 Fifth Avenue, New York, New York 10022. 47. Through the use of various entities, Defendant owns and controls Trump Tower. 48. Defendant, through entities he owns, receives payments made to Trump Tower by tenants. 49. Among the largest tenants of Trump Tower is the Industrial and Commercial Bank of China (“ICBC”), which is a Chinese majority-state-owned enterprise.13 As such, ICBC is a foreign State or instrumentality of a foreign State. 50. After 12:01 pm on January 20, 2017, Trump Tower or its controlling entities have received one or more payments from ICBC pursuant to its lease. Trump Tower or its controlling entities will continue to receive regular payments from ICBC pursuant to its lease agreement. 51. In discussing his views of U.S.-China relations, Defendant has repeatedly referenced the ICBC’s Trump Tower lease. For instance, Defendant stated during his
12 Jennifer Calfas, Eric Trump Says He’ll Give the President Quarterly Updates on Business Empire, Fortune (March 24, 2017), http://for.tn/2n2MRXa.
13 Caleb Melby et al., When Chinese Bank’s Trump Lease Ends, Potential Conflict Begins, Bloomberg (Nov. 28, 2016, 7:00 AM), https://bloom.bg/2oQ07T4.
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presidential campaign in June 2015, “I love China! The biggest bank in the world is from China. You know where their United States headquarters is located? In this building, in Trump Tower.”14
52. Additionally, in March 2016, when asked about China’s territorial claims in the South China Sea, Defendant told the Washington Post, “I do deals with them all the time. The largest bank in the world, 400 million customers, is a tenant of mine in New York, in Manhattan.”15
53. The term of ICBC’s Trump Tower lease runs until October 2019, while Defendant is President, and any negotiations for an extension will occur while Defendant is in office.16
54. The Abu Dhabi Tourism & Culture Authority, an entity owned by the foreign nation of the United Arab Emirates, leases office space in Trump Tower.17 The Abu Dhabi Tourism & Culture Authority is a foreign State or instrumentality of a foreign State.
55. After 12:01 pm on January 20, 2017, Trump Tower or its controlling entities have received one or more payments from the Abu Dhabi Tourism & Culture Authority pursuant to its lease. Trump Tower or its controlling entities will continue to receive regular payments from the Abu Dhabi Tourism & Culture Authority pursuant to its lease agreement.
56. Trump Grill is located inside of Trump Tower. Defendant, through various
14 Id. 15 Id. 16 Id. 17 Abu Dhabi Tourism & Culture Authority, Supplement Statement Pursuant to Foreign Agents Registration Act of 1938, as amended (Oct. 4, 2016), http://bit.ly/2prSZNb; María Villaseñor, Trump’s Comments Cost Him Money in Middle East, NBC News (Dec. 9, 2015, 10:51 AM), http://nbcnews.to/1PZxTNA.
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business entities, owns Trump Grill. Upon information and belief, tenants of Trump Tower, including officials of China and Abu Dhabi, have dined at Trump Grill due to their tenancy in the Tower and the states themselves may host events there. Accordingly, foreign states or the instrumentalities have paid or are likely to pay for services at Trump Grill. Defendant has and will continue to receive payments from various foreign states through Trump Grill.
Washington, D.C.’s Trump International Hotel 57. The Trump International Hotel Washington, D.C. recently opened and is located at 1100 Pennsylvania Avenue N.W., Washington, D.C. 20004, just blocks from the White House. Defendant owns and controls this hotel through various entities. 58. Defendant, through entities he owns, receives payments made to the Trump International Hotel by guests who stay in hotel rooms or pay for a venue or other goods or services in this hotel. 59. The restaurant BLT Prime is located in Trump International Hotel. Defendant, through various business entities, owns the restaurant and licenses the name from BLT Prime and pays BLT Prime to operate it.18 60. Since the election, Trump International Hotel has specifically marketed itself to the diplomatic community.19 Subsequent to Defendant’s election, the Trump International Hotel held an event where it pitched the hotel to about 100 foreign diplomats. 61. The hotel also hired a “director of diplomatic sales” to facilitate business with foreign states and their diplomats and agents, luring the director away from a competitor hotel in
18 Jessica Sidman, How Donald Trump Lost His DC Restaurants, Washingtonian (Oct. 23, 2016), http://bit.ly/2htYzq9.
19 Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump hotel is place to be, Wash. Post (Nov. 18, 2016), http://wapo.st/2oPYggX.
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Washington.20 62. Diplomats and their agents have expressed an intention to stay at or hold events
at the Trump International Hotel. One “Middle Eastern diplomat” told the Washington Post about the hotel: “Believe me, all the delegations will go there.”21 An “Asian diplomat” explained: “Why wouldn’t I stay at his hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it rude to come to his city and say, ‘I am staying at your competitor?’”22
63. Since his election, Defendant has appeared at the hotel on multiple occasions. Several figures in Defendant’s administration have also lived or continue to live in the Trump International Hotel, including Treasury Secretary Steve Mnuchin and Small Business Administration Administrator Linda McMahon.
64. The Kingdom of Bahrain held its National Day celebration at the Trump International Hotel on December 7, 2016.23
65. The Kingdom of Bahrain is a foreign State. 66. Upon information and belief, Bahrain paid the Hotel no less than its stated customary rates for the venue, food, and other services provided in connection with its National Day celebration. 67. After November 8, 2016, Trump International Hotel or its controlling entities have received one or more payments from Bahrain.
20 Id. 21 Id. 22 Id. 23 Nolan D. McCaskill & Madeline Conway, Bahrain to host event at Trump’s D.C. hotel, raising ethical concerns, POLITICO (Nov. 29, 2016, 3:37 PM), http://politi.co/2gtWGLd.
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68. The Embassy of Azerbaijan co-hosted a Hanukkah party at the Trump International Hotel on December 14, 2016.24
69. Upon information and belief, Azerbaijan paid the Hotel no less than its stated customary rates for the venue, food, and other services provided in connection with the Hanukkah party.
70. The Embassy of Azerbaijan is a foreign state or instrumentality of a foreign State.
71. After November 8, 2016, Trump International Hotel or its controlling entities received one or more payments from Azerbaijan.
72. The Embassy of Kuwait held its National Day celebration at Trump International Hotel on February 22, 2017.25
73. Upon information and belief, Kuwait paid no less than the Hotel’s stated customary rates for the venue, food, and other services provided in connection with its National Day celebration. The cost has been estimated at $40,000 to $60,000.26
74. Prior to the election, a “save the date” reservation had been made with the Four Seasons hotel, where the event had been held previously.27 According to one media report, the Embassy of Kuwait moved the event from a competitor hotel under pressure from the Trump
24 Azerbaijan’s Embassy To Co-Host Hanukkah Party At Trump’s DC Hotel, The Jerusalem Post (Dec. 4, 2016), http://bit.ly/2g4o9S0.
25 Jonathan O’Connell, Kuwaiti Embassy is latest to book Trump D.C. hotel, but ambassador says he felt ‘no pressure’, Wash. Post (Dec. 20, 2016), http://wapo.st/2pKC4BS; Jackie Northam, Kuwait Celebration At Trump Hotel Raises Conflict of Interest Questions, NPR (Feb. 25, 2017, 6:33 AM), http://n.pr/2lavPoB.
26 Julia Harte, Kuwait could pay up to $60,000 for party at Trump Hotel in Washington, Reuters (Feb. 27, 2017, 4:29 PM), http://reut.rs/2oFztKa.
27 Jackie Northam, Kuwait Celebration At Trump Hotel Raises Conflict of Interest Questions, NPR (Feb. 25, 2017, 6:33 AM), http://n.pr/2lavPoB.
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Organization (though Kuwait’s ambassador to the United States denied being pressured).28 75. After 12:01 pm on January 20, 2017, Trump International Hotel or its
controlling entities have received one or more payments from Kuwait. 76. Kuwait is a foreign State. 77. Between January 23 and 26, 2017, the Kingdom of Saudi Arabia, through its
agent, rented at least one and likely several rooms at the Trump International Hotel.29 78. Upon information and belief, Saudi Arabia paid at least $300 per night for the
rooms, and paid the Hotel’s usual and customary rates for meals and other services provided in connection with the stay.
79. Saudi Arabia paid for individuals to have dinner at the hotel on January 23 and both breakfast and dinner on January 24, 2017. Upon information and belief, at least one of the meals was provided by BLT Prime.30
80. After 12:01 pm on January 20, 2017, Trump International Hotel or its controlling entities have received one or more payments from Saudi Arabia, through its agent.
81. Saudi Arabia is a foreign State. 82. On or about April 6, 2017, Kaha Imnadze, the Ambassador & Permanent Representative of Georgia to the United Nations, stayed at Trump International Hotel.31
28 Judd Legum & Kira Lerner, Under political pressure, Kuwait cancels major events at Four Seasons, switches to Trump’s D.C. hotel, ThinkProgress (Dec. 19, 2016), http://bit.ly/2hBOHhP.
29 Isaac Arnsdorf, Saudis foot tab at Trump hotel, POLITICO (Feb. 9, 2017, 8:50 PM), http://politi.co/2kZa6mS.
30 Operations Order from Jason E. Johns, President of NMLB Veterans Advocacy Group, to Fly-In Veterans regarding the Justice Against Sponsors of Terrorism Act (Jan. 23-26, 2017), http://bit.ly/2oiBdIp.
31 Kaha Imnadze (@kahaimnadze), Twitter (April 6, 2017, 8:49 AM), http://bit.ly/2oiF8Fd.
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83. Upon information and belief, the government of Georgia paid no less than the Hotel’s stated customary rates for his room and other services provided in connection with his stay.
84. Ambassador Imnadze then tweeted his complements about the Hotel. 85. After 12:01 pm on January 20, 2017, Trump International Hotel or its controlling entities have received one or more payments from Georgia. 86. Georgia is a foreign State. 87. After 12:01 pm on January 20, 2017, Trump International Hotel or its controlling entities have received and will continue to receive payments from other foreign states. 88. On January 20, 2017, Trump Old Post Office LLC, the entity leasing the building in which Trump International Hotel is located and in which Defendant has a beneficial interest, amended its governing agreement to provide that, during Defendant’s presidency, the company will not make any distributions of profits to any entity in which Defendant has a beneficial interest and will credit these undistributed profits to an unrecovered capital contribution account held for the benefit of the designated entities that Defendant controls. This amendment is immaterial to whether Defendant has violated the Foreign Emoluments Clause. Defendant remains owner of approximately 77.5% of the Trump Old Post Office LLC (the remaining shares are owned by three of his children), and Defendant thereby benefits from any amounts deposited into the unrecovered capital contribution account, and may receive distribution of those amounts once he is no longer in office. 89. Additionally, the amendment provides that Defendant’s contributions will be used by Trump Old Post Office LLC for business purposes, thereby increasing the value of one of Defendant’s assets.
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Trump World Tower 90. Trump World Tower is a skyscraper located at 845 United Nations Plaza, New York, New York containing condo units. 91. Through the use of various entities, Defendant owns and controls Trump World Tower. 92. Defendant, through entities he owns, receives payments made by residents of the Trump World Tower for common charges. 93. The World Bar is located in Trump World Tower. 94. In 2001, the Kingdom of Saudi Arabia paid $4.5 million to purchase a floor of Trump World Tower.32 95. At the time of the sale, yearly common charges for building amenities for the floor totaled $85,585. As of 2003, the most recent year for which information is publicly available, Saudi Arabia paid monthly common charges of approximately $7,398, amounting to $88,781 per year. The floor currently belongs to the Kingdom of Saudi Arabia for use by the Saudi Mission to the United Nations, which upon information and belief still pays common charges to Defendant.33 96. In 2015, Trump said about Saudi Arabia, “I get along great with all of them. They buy apartments from me.” Trump further noted, “They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much.”34
32 Stephen R. Brown, Donald Trump made millions from Saudi Arabia, but trashes Hillary Clinton for Saudi donations to Clinton Foundation, N.Y. Daily News (Sept. 4, 2016, 4:00 AM), http://nydn.us/2bNEAq2.
33 Id. 34 Id.
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97. The Kingdom of Saudi Arabia is a foreign State, and the Saudi Mission to the United Nations is an instrumentality of a foreign State.
98. In 2002, the Permanent Mission of India to the United Nations paid $5.1 million to purchase two units in Trump World Tower from Defendant.35
99. As of 2003, the most recent year for which information is publicly available, the Permanent Mission of India to the United Nations paid monthly common charges of approximately $3,639, amounting to $43,670 per year. The units continue to belong to the Permanent Mission of India to the United Nations, which upon information and belief still pays common charges to Defendant.
100. The Permanent Mission of India to the United Nations is an instrumentality of a foreign State.
101. In 2009, the Permanent Mission of Afghanistan to the United Nations paid $4.235 million to purchase a unit in Trump World Tower.36
102. As of 2003, the most recent year for which information is publicly available, the common monthly charges for the unit purchased by the Permanent Mission of Afghanistan to the United Nations were approximately $2,090 per month, amounting to approximately $25,085 per year. The unit continues to belong to the Permanent Mission of Afghanistan to the United Nations, which upon information and belief still pays common charges to Defendant.
103. The Permanent Mission of Afghanistan to the United Nations is an instrumentality of a foreign State.
35 N.Y.C. Dep’t of Finance, Office of the City Registrar, Condo. Unit Deed: 845 U.N. Ltd. P’ship To The Permanent Mission of India to the U.N. (Dec. 23, 2002), http://on.nyc.gov/2pb8Obx.
36 Max Abelson, Afghanistan Buys $4.2 M. Trump Condo (with ‘Peacefulness and Views’), Observer (Sept. 11, 2009, 4:48 PM), http://bit.ly/2oQ74n3.
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104. In 2004, the Permanent Mission of Qatar to the United Nations paid $1,995,000 to purchase a unit in Trump World Tower, and in 2012, it paid $8.375 million to purchase two additional units in Trump World Tower.
105. As of 2003, the most recent year for which information is publicly available, the common monthly charges for the units purchased by the Permanent Mission of Qatar to the United Nations, 14A, 55B, and 49B, were a total of approximately $5,660 per month, amounting to approximately $67,920 per year. The units continue to belong to the Permanent Mission of Qatar to the United Nations, which upon information and belief still pays common charges to Defendant.
106. The Permanent Mission of Qatar to the United Nations is an instrumentality of a foreign State.
107. Defendant, through entities he owns, receives payments made to Trump World Tower by tenants, and owners of units in the building, through their payment of common charges. On information and belief, these payments more than cover the costs intended to be covered by the common charges.
108. Trump World Tower or its controlling entities will continue to receive regular common charge payments from Saudi Arabia, India, Afghanistan, and Qatar, and those payments will flow to Defendant.
109. Tenants of the Trump World Tower—including officials from Saudi Arabia, India, Afghanistan, and Qatar—have dined or will dine at the World Bar. Further, foreign states or instrumentalities of these or other foreign states have hosted and will host events at the World Bar, as it is located near the United Nations. By reason of his financial stake in Trump World Tower, Defendant will either receive payments from foreign states made to the World Bar; or the revenue that the World Bar receives, including from foreign states, affects the amount of rent that
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Defendant is able to charge the World Bar. 110. Neither Saudi Arabia, India, Afghanistan, nor Qatar is one of the countries
included in Defendant’s Executive Order or Defendant’s revised Executive Order barring visitors from six predominantly Muslim countries. None of the six countries included in the order has the financial relationships with Defendant that Saudi Arabia, India, Afghanistan, or Qatar has.
Gratuitous Chinese Trademarks 111. Defendant began to seek trademark protection in China for the use of his name in connection with building construction services in 2006. His application was rejected by the Trademark Office. He lost his appeals to the Trademark Review and Adjudication Board, the Beijing Intermediate People’s Court, and the Beijing High People’s Court.37 Trump’s most recent defeat occurred in May 2015—the month before he declared his candidacy for president. 112. Following the election, on December 2, 2016, Defendant spoke directly with Taiwan President Tsai Ing-wen.38 That conversation broke long-standing protocol, and suggested Defendant might end the “One China” policy that the United States had observed for decades. Before taking office, Defendant suggested that he might end the One China policy unless some benefit were received in exchange.39 113. On February 9, 2017, Defendant spoke with Chinese President Xi Jinping, and
37 Erika Kinetz, With Trump’s win in China, will Trump toilets get flushed?, Associated Press (Feb. 14, 2017), http://apne.ws/2mfcK9N.
38 Jordan Fabian & Neetzan Zimmerman, Trump makes history with phone call to Taiwan leader, The Hill (Dec. 2, 2016, 4:52 PM), http://bit.ly/2prWnYu.
39 Jordan Fabian & Evelyn Rupert, Trump promises Chinese president he’ll honor ‘one China’ policy, The Hill (Feb. 9, 2017, 11:11 PM), http://bit.ly/2pbgZUW; Laurel Raymond & Judd Legum, Trump’s trademark tests Chinese law, Think Progress (Feb. 18, 2017), http://bit.ly/2oPTD6q.
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pledged to honor the One China policy.40 114. Five days later, on February 14, 2017, China reversed its prior course and gave
Defendant trademark protection. 115. Chinese law prohibits awarding trademarks that are “the same as or similar to
the name of leaders of national, regional, or international political organizations.”41 116. Despite denying Defendant trademark protection for over ten years, including
in a ruling from an appellate court, and despite China’s law barring the use of foreign leaders’ names as trademarks, China gave Defendant the trademark he had requested and valued. However, China only gave the trademark protection to Defendant after he had been elected President, questioned the One China policy, was sworn in, and re-affirmed the One China policy.
117. The trademarks have considerable value by giving the Trump Organization the sole right to profit from the Trump brand in China. China’s granting of these trademarks constitutes a present or emolument provided to the Defendant.
118. When asked why Defendant changed his position on the One China policy, and whether he had gotten something in exchange from China, White House Press Secretary Sean Spicer answered: “The President always gets something,” but did not specify what concession was obtained from China.42
40 Jordan Fabian & Evelyn Rupert, Trump promises Chinese president he’ll honor ‘one China’ policy, The Hill (Feb. 9, 2017, 11:11 PM), http://bit.ly/2pbgZUW.
41 Laurel Raymond & Judd Legum, Trump’s trademark tests Chinese law, Think Progress (Feb. 18, 2017), http://bit.ly/2oPTD6q.
42 Madeline Conway, Spicer on Trump’s ‘One China’ agreement: ‘The president always gets something’, POLITICO (Feb. 27, 2017, 3:11 PM), http://politi.co/2prZpf7.
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International Versions and Distribution of “The Apprentice” and Its Spinoffs 119. Defendant earns royalties and other payments from the distribution in other countries of the television program “The Apprentice” and its spinoffs (including “The Celebrity Apprentice” and “The New Celebrity Apprentice,” for which Defendant is still an executive producer), as well as from international versions of the programs produced in other countries. In some instances, these payments originate from foreign governments or their agents or instrumentalities. For instance, there is an iteration of the program “The Apprentice,” for which Defendant is paid, in the United Kingdom.43 120. The network which broadcasts The Apprentice and spinoff shows in the United Kingdom is an instrumentality of a foreign State. 121. After 12:01 pm on January 20, 2017, Defendant has received and will continue to receive payments from foreign states via their payments for “The Apprentice” or its spinoffs and international versions. Other Foreign Connections, Properties, and Businesses 122. United Arab Emirates: Defendant’s company is engaged in several real estate projects in the United Arab Emirates (UAE), including Dubai’s Trump International Golf Club, which opened on February 18, 2017.44 Upon information and belief, Defendant, through various business entities, has a branding and management contract with the property, and thereby possesses a financial interest in the Trump International Gold Club. 123. All services for the golf club, including electricity, water, and roads, “come at the
43 Madeline Berg, Here’s How Much Donald Trump Will Earn From Producing ‘Celebrity Apprentice’, Forbes (Dec. 13 2016, 12:49 PM), http://bit.ly/2pKQTom.
44 Sudarsan Raghavan, Trump’s sons get red carpet treatment at Dubai golf club opening, Wash. Post (Feb. 18, 2017), http://wapo.st/2oGGaO1.
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discretion of the government,” and the “club’s bar will need government approvals to serve alcohol, not to mention other regulatory issues.”45 In light of the government’s complete discretion to grant or deny these services and license, the government’s granting of these approvals constitutes a present or emolument.
124. Permits, utility and other services, and approvals are of substantial economic value to the Golf Club and other projects and thus to those with a financial interest in the Golf Club and other projects, since these facilities cannot be built or operated without them. Defendant will receive value from the permits, services and approvals through his financial stake in the company receiving them, and thereby will accept a present or emolument from UAE, a foreign State.
125. Indonesia: Defendant’s company is engaged in at least two real estate projects in Indonesia, including redeveloping a resort in Bali.46 Upon information and belief, Defendant, through various business entities, has a licensing and management agreement with these projects, through which he possesses a financial interest in them.
126. As part of this effort, Defendant reportedly has “forged relationships with powerful political figures in Indonesia, where such connections are crucial to pushing through big projects.”47 Because the granting of necessary permits and approvals for these real estate projects
45 Jon Gambrell, Trump’s New Dubai Golf Club Shows Pitfalls of His Presidency, Associated Press (Jan. 3, 2017), http://apne.ws/2iyX6B9.
46 Ian Jarrett, Pan Pacific makes way for Trump in Bali, Travel Weekly (Feb. 17, 2017), http://bit.ly/2nU3ANN; Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016), http://nyti.ms/2pbahyo; Russ Choma, Trump’s Indonesian Business Partner Brags About His Access, Mother Jones (Feb. 10, 2017, 1:09 PM), http://bit.ly/2kujqMC.
47 Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016), http://nyti.ms/2pbahyo.
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was or will be facilitated by Defendant’s personal relationships with government officials in Indonesia, these existing or forthcoming permits and approvals constitute gifts or emoluments.
127. Completing the projects required or will require obtaining benefits from the Indonesian government, such as permits and approvals. Permits and approvals are of substantial economic value to the resort and other projects and thus to the those with a financial interest in the resort and other projects, since the projects cannot be built or operated without them. Defendant will receive value from the permits and approvals through his financial stake in the company receiving the permits and approvals, and thereby will accept a present or emolument from Indonesia, a foreign State.
Other Domestic and International Properties and Businesses 128. Defendant owns, operates, and licenses numerous other businesses throughout the United States and abroad, including other hotels, other properties for sale or lease, and golf courses and clubs.48 Each of those hotels, golf clubs, or other businesses sets rates that far exceed the marginal cost of providing the associated services and products. These revenues then flow to Defendant. After 12:01 pm on January 20, 2017, Defendant, through at least one of his various businesses, properties, and other entities, has received one or more payments in excess of marginal costs from foreign states and will continue to do so. B. Defendant’s Domestic Emoluments Clause Violations 129. As alleged above, Defendant owns and controls hundreds of businesses throughout the country, including hotels and other properties. Through these entities and agreements, Defendant personally benefits from their business dealings, and Defendant is and
48 U.S. Office of Gov’t Ethics, Donald J. Trump 2016 Executive Branch Personnel Public Financial Disclosure Report (May 16, 2016), http://bit.ly/2gBUwIV.
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will be enriched by any business in which they engage with state governments or agencies of the U.S. government.
130. On August 5, 2013, a business entity ultimately owned primarily by Defendant—Trump Old Post Office LLC—signed a 60-year lease with the General Services Administration—an independent agency of the United States, whose administrator is appointed by the President—to open a hotel in the “Old Post Office” Building in Washington, D.C.
131. More than 76% of Trump Old Post Office LLC is owned by DJT Holdings LLC, which is in turn owned almost entirely by the Donald J. Trump Revocable Trust, of which Defendant is the sole beneficiary. The hotel opened at this site is The Trump International Hotel Washington, D.C. Defendant has not divested his interest in the lease since becoming President.
132. Section 37.19 of the Old Post Office lease states: “No . . . elected official of the Government of the United States . . . shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom.”
133. Section 27.1 of the Old Post Office lease outlines what constitutes a “tenant’s default.” A “non-monetary breach” includes “any breach by the Tenant of any other terms, obligations, conditions, agreements or covenants under this Lease,” if that breach continues for 30 days after the tenant is given notice of it.
134. A violation of Section 37.19 is a non-monetary breach and a default unless it is remedied within 30 days after notice from the General Services Administration (“GSA”).
135. Accordingly, Defendant has been in breach of the lease with the GSA since 12:01 pm on January 20, 2017, when he became President.
136. Prior to Defendant’s inauguration, the Deputy Commissioner of the GSA indicated to Representatives Elijah Cummings, Peter DeFazio, Gerald Connolly, and André
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Carson that Defendant would be in violation of lease unless he “fully divests himself of all financial interests in the lease” for the Trump International Hotel.
137. Shortly after Defendant’s inauguration, Norman Dong, a GSA official appointed by former President Barrack Obama, became acting administrator.
138. Defendant enjoys the power to fire the head of the GSA. 139. Less than a day later after Mr. Dong assumed his role as acting GSA administrator, Defendant replaced him with Tim Horne, who had coordinated the GSA’s transition with Defendant’s campaign.49 140. On March 16, 2017, Defendant released a proposed 2018 budget. The proposed budget increases the funding available to the GSA, whereas it cuts all or nearly all other non-defense-related agencies’ budgets.50 141. The GSA issued a letter on March 23, 2017 stating that Trump Old Post Office LLC “is in full compliance with Section 3719 [of the Lease] and, accordingly, the Lease is valid and in full force and effect.” 51 142. This determination by the GSA is contrary to the plain meaning of the lease terms. 143. A significant portion of the GSA’s March 23, 2017 letter reviews the purported financial benefits of the Lease to the GSA and tax payers. This discussion is immaterial to whether Lease’s terms were breached when Defendant became President.
49 Isaac Arnsdorf, Trump picks leader for federal agency overseeing his D.C. hotel, POLITICO (Jan. 26, 2017, 2:55 PM), http://politi.co/2psgMfU.
50 Office of Mgmt. & Budget, Exec. Office of the President, Fiscal Year 2018 (2017), http://bit.ly/2nvjrBO.
51 Letter from Kevin M. Terry, Contracting Officer, United States Gen. Servs. Admin., to Donald J. Trump, Jr., (March 23, 2017), http://bit.ly/2nhKfaB.
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144. The March 23, 2017 letter attaches an amendment to the agreement governing the business of Trump Old Post Office LLC. This amendment is the basis of the GSA’s position that the tenant is in compliance with the Lease, but the letter does not explain how the amendment brings the tenant into compliance. In fact, as described above, the amendment does not prevent Defendant from receiving “any benefit” from the Lease, and Trump Old Post Office LLC remains in breach of the Lease.
145. In forbearing from enforcement of the Old Post Office Lease’s default and termination procedures, despite the tenant’s breach of its terms, and in cooperating with the tenant in attempting to create the appearance of compliance with the Lease, the federal government has given Defendant something of great value. Pursuant to this decision, Defendant has received an emolument.
146. Additionally, Defendant, through entities he owns, is seeking a $32 million historic preservation tax credit for the Trump International Hotel.
147. Approval of this substantial tax credit is at the discretion of the National Park Service, an instrumentality of the federal government under Defendant’s authority.52 If approved, the tax credit would offset approximately 20% of the cost of rehabilitating the building in which the Trump International Hotel is operating.
148. On November 14, 2016, Defendant received approval from the National Park Service, for the second step of the three step-approval process for the tax credit. If final approval is granted, it will constitute an emolument, as the decision is wholly committed to the discretion of the agency.
52 Eric Levitz, Trump Won the Presidency, Then Approval on a Tax Subsidy for His Hotel, N.Y. Mag. (November 30, 2016, 4:17 PM), http://nym.ag/2oFF1o9.
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149. On information and belief, state and local governments have or will continue to make payments for the use of facilities owned or operated by Defendant for a variety of functions. The Defendant will receive a portion of those payments, which constitute emoluments prohibited by the Domestic Emoluments Clause.
C. Post-Inauguration Premium for Defendant’s Goods and Services 150. Since Defendant’s inauguration as President, goods and services sold by his various businesses have sold at a premium. Defendants’ high office gives the Trump brand greater prominence and exposure. Moreover, these goods and services provide a unique benefit: access to, influence on, and the good will of the President of the United States. 151. Thus, for example, the starting rate for guest rooms at Defendant’s Old Post Office hotel increased to $500 on most nights, up hundreds of dollars from when the hotel first opened shortly before Defendant’s election.53 152. Further, the annual rate for membership at Defendant’s Mar-a-Lago resort doubled from $100,000 to $200,000 shortly after he was elected.54 D. CREW’s Injuries 153. Defendant’s violations of the Emoluments Clauses have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW’s ability to accomplish its mission. CREW has had to counteract Defendant’s violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and specific mission that
53 Julie Bykowicz, Trump Hotel May Be Political Capital of Nation’s Capital, Associated Press (Mar. 5, 2017), http://apne.ws/2pL6xQs.
54 Robert Frank, Mar-a-Lago membership fee doubles to $200,000, CNBC (Jan 25, 2017, 12:41 PM), http://cnb.cx/2kjIc2j.
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it has, and because Defendant’s novel and opaque system for receiving payments perceptibly impairs CREW’s daily operations.
154. There is a direct conflict between Defendant’s violations of the Emoluments Clauses and CREW’s mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant’s violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President’s motives in making decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.
Diversion of CREW’s Communications Resources 155. CREW has expended a significant amount of time and resources since the election gathering information about the Emoluments Clause violations, and educating the public about the Emoluments Clauses and Defendant’s violations of them. CREW has received hundreds of requests from the media about Defendant’s conflicts of interest, including hundreds regarding the Emoluments Clauses and Defendant’s violations of them. Many of these media requests sought explanations of the clauses and their applicability, and CREW has spent a substantial number of hours responding to them. As a result of these efforts to educate the public as CREW’s mission requires, members of CREW’s staff and its board of directors repeatedly have been interviewed by and quoted in the news media discussing the Emoluments Clauses and Defendant’s violations of them. These media requests are certain to continue, and CREW will continue to need to expend time and resources to respond to them. 156. CREW regularly issues press releases and statements, and responds to requests for information and comments from the media on a range of topics, including but not limited to
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ethics, corruption, campaign finance, and accountability. Both before and after the election, CREW received hundreds of questions from the news media about Defendant’s businesses and conflicts of interest, including hundreds related to the Emoluments Clauses. CREW has diverted its time and resources from its other public-education activities to respond to these questions. CREW normally responds to nearly every press request. However, due to the volume of requests from national news media about Defendant’s conflicts of interest, including his violations of the Emoluments Clauses, CREW has not had the time and resources to respond to requests from many smaller and regional outlets regarding, for example, local money-in-politics issues and congressional ethics issues.
Diversion of CREW’s Legal Resources 157. CREW’s in-house attorneys have diverted their time and resources from other projects to counteract Defendant’s violations of the Emoluments Clauses. Since the election, CREW has received numerous requests for information, guidance, and advice about the Emoluments Clauses from policymakers. To respond to those requests, and as part of CREW’s advocacy in support of its mission of ensuring the integrity of government officials, CREW has expended significant resources conducting legal research regarding the history and scope of the Emoluments Clauses. Moreover, CREW’s attorneys, including its executive director, have spent a significant amount of time on phone calls and in meetings responding to those inquires. 158. CREW’s attorneys also have conducted legal research to respond to many of the requests for information from the news media regarding the Emoluments Clauses. In addition, CREW’s attorneys and researchers have assisted in researching and drafting publications educating the public about the clause and the impact of Defendant’s violations of it. 159. CREW also has conducted extensive legal research and analysis of potential legal actions to counteract Defendant’s violations of the Emoluments Clauses. CREW’s
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attorneys have researched and analyzed potential lawsuits that could be used to enforce the

clauses, drafted this complaint, and expended resources to file it. CREW’s attorneys also have

researched and analyzed the potential for filing complaints with government agencies.

160. CREW further has filed Freedom of Information Act requests to obtain records

related to potential violations of the Emoluments Clauses. For example, on December 22, 2016,

CREW sent two FOIA requests to the Department of Justice Office of Legal Counsel (“OLC”).

One request sought all OLC opinions discussing the Domestic Emoluments Clause. The second

sought all OLC opinions provided to the Office of Government Ethics or the GSA after

November 8, 2016.

161. In addition, due in part to the volume of legal issues related to Defendant’s

conflicts of interest, including the need to counteract his violations of the Emoluments Clauses,

CREW hired two additional senior attorneys in December 2016 and January 2017 to strengthen

CREW’s ability to address these issues.

162. This use of time and resources on legal matters related to Defendant’s violations

of the Emoluments Clauses is certain to continue in order for CREW to seek to fulfill its mission,

despite the challenges posed by Defendant’s violations of the Emoluments Clauses. In addition

to needing to monitor Defendant’s business interests for potential violations, CREW attorneys

will, among other things, continue to need to evaluate payments to Defendant’s hotels and other

business interests to determine if they violate the Emoluments Clauses; research and analyze

possible legal actions; and draft, file, and potentially litigate related Freedom of Information Act

requests.

163. The time and resources CREW has used and will continue to use to counteract

Defendant’s violations of the Emoluments Clauses were and will continue to be diverted from

other legal projects and activities in which CREW would have otherwise engaged. 37

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164. In the months immediately following elections, CREW regularly has drafted and filed complaints for violations of campaign finance and other laws related to political activity. In January 2013, for example, CREW filed complaints with the Federal Election Commission (FEC) and the Department of Justice (DOJ) alleging that several individuals, companies, and a super PAC made and accepted an illegal $1 million conduit contribution during the 2012 election.55 CREW also filed FEC and DOJ complaints in November 2012 against a section 501(c)(4) “dark money” organization for failing to disclose the identities of donors who contributed $6 million to fund campaign advertisements in Ohio during the 2012 campaign.56 Similarly, in November 2014, CREW filed a complaint with the IRS against another section 501(c)(4) organization that violated its tax-exempt status by operating almost entirely for the private benefit of a political candidate and public official by spending nearly all of its money in 2013 and 2014 on advertisements that either directly supported the candidate’s reelection or heaped praise on him in a transparent attempt to boost his political advancement and agenda.57
165. During the 2016 election, CREW continued to track the spending and activities of candidates and outside groups engaged in politics, and intended to review campaign finance and tax records following the election. CREW expected to continue conducting that research after the election and to file complaints against several organizations regarding their compliance with campaign finance and tax law. Although CREW has been able to expend some resources on these activities and did file one complaint it drafted before the election, it has not been able to
55 CREW Files DOJ, FEC Complaints Against Payday Lender For Illegal Conduit Contribution to Super PAC (Jan. 8, 2013), http://bit.ly/2oQjriL.
56 CREW Files FEC Complaint Against Crossroads GPS For Failing to Disclose Donors (Nov. 15, 2012), http://bit.ly/2puYE28.
57 CREW Files IRS Complaint Against the Kentucky Opportunity Coalition (Nov. 24, 2014), http://bit.ly/2oiKXCr.
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complete research for or draft and file other complaints in part because it needed to divert time and resources to counteract Defendant’s violations of the Emoluments Clauses.
166. In recent years, CREW has pursued a project related to campaign finance and ethics in the states. Work on that project has included, among other things, monthly concentrated periods for CREW staff to conduct research and explore potential legal actions. CREW has not been able to conduct many aspects of this project, including the monthly staff work periods, since just after the 2016 election due to the need to divert its time and resources to responding to Defendant’s conflicts of interests, including his violations of the Emoluments Clauses. CREW does not expect to have the resources to conduct these activities in the foreseeable future.
167. CREW also researches, drafts, and files comments with government agencies related to rulemakings and other regulatory actions. For example, in the months following the 2014 elections, CREW drafted comments in response to an FEC rulemaking notice,58 and filed the comments in January 2015.59 Following the 2016 elections, several FEC rulemaking comment periods were open. CREW considered filing comments in these proceedings, but did not do so due to the need to divert its time and resources to responding to Defendant’s conflicts of interests, including his violations of the Emoluments Clauses.
Diversion of CREW’s Research Resources 168. Defendant’s violations of the Emoluments Clauses also have required CREW to expend a significant amount of time and resources to research and monitor Defendant’s business
58 Advance Notice of Proposed Rulemaking, Earmarking, Affiliation, Joint Fundraising, Disclosure, and Other Issues, 79 Fed. Reg. 62361 (Oct. 17, 2014) (REG 2014-01).
59 CREW to FEC: Comments on Addressing Corruption and Deficiencies in Disclosure (Jan. 15, 2015), http://bit.ly/2nWEWiI.
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JA 58

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interests. Since the November 2016 election, CREW researchers have dedicated significant time and effort to developing a comprehensive understanding of Defendant’s business empire and conflicts of interest, particularly regarding his business ties to foreign companies and governments that run a strong risk of resulting in a violation of the Emoluments Clauses. For example, CREW researchers have compiled and analyzed data regarding the more than 500 business entities Defendant listed on his 2016 personal financial-disclosure form, developing that information for both internal and external uses. As part of that project, CREW researchers devoted at least seventy hours to creating a series of infographics to explain the Defendant’s businesses and income, emphasizing the Defendant’s foreign businesses.60 This project began on November 28, 2016 and is not yet fully completed. Every member of CREW’s research team has worked on this project on a near-daily basis.
169. This project was launched in part to aid in responding to questions from the news media about the extent of Defendant’s business dealings. As explained above, CREW has received hundreds of questions from the news media about Defendant’s businesses, including his foreign businesses, and CREW determined that a comprehensive internal resource was necessary to help answer those questions.
170. As a result of Defendant’s decision to not divest himself from his properties and business interests, CREW will need to continue to expend significant time and resources to research and monitor Defendant’s violations of the Emoluments Clauses. As part of its mission, CREW will need to research and monitor Defendant’s businesses to determine if he receives any foreign emoluments through them. Payments to his businesses, however, are rarely public,
60 John Morgan, et al., 5 Graphics to Help You Understand President Trump’s Conflict of Interest (Feb. 22, 2017), http://bit.ly/2lKJ419.
40
JA 59

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requiring CREW to expend resources to uncover them. Again, this will require significant time and resources as payments to hotels and other business entities are rarely public, and neither Defendant nor his attorney announced any system for transparency or accountability for these or any other foreign payments. Further, Defendant has intentionally made it more difficult to obtain information about foreign payments. Defendant, for instance, has refused to release his tax returns, contrary to the norm for the last forty-five years. Further, according to media reports, the press was banned from his D.C. hotel at times during the week of the inauguration.61
171. The time and resources CREW has used and will continue to use to research Defendant’s business interests related to violations of the Emoluments Clauses were and will continue to be diverted from other research projects and activities in which CREW would have otherwise engaged. In the months immediately following elections, CREW traditionally has produced research and reports looking back at money-in-politics issues and players in that election cycle. In December 2012, for example, CREW published Stealth Donors, a report on donors who gave more than $1 million to super PACs trying to influence the 2012 election but whose efforts to sway voters were largely out of the public view.62 CREW similarly researched and published in December 2014 a series of blog posts on “dead-end disclosure,” practices used to keep secret the identities of donors who give money to outside groups attempting to influence elections.63
172. CREW intended to conduct similar research and analysis on campaign-finance
61 Daniel Lippman, Trump’s D.C. hotel bans press during inauguration week, POLITICO (Jan. 18, 2017), http://politi.co/2jo2jw1.
62 Stealthy Super PAC Donors Stay Under the Radar (Dec. 3, 2012), http://bit.ly/2pbnuam. 63 Matt Corley & David Crockett, CREW Series: Dead End Disclosure in the 2014 Elections (Dec. 15, 2014), http://bit.ly/2oQ3glF.
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JA 60

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issues in the aftermath of the 2016 election and expected to publish the results, but has not had time and resources to follow through on these plans or develop other evaluations of spending in the 2016 election. Instead, CREW needed to divert its resources to research and analyze Defendant’s business interests, particularly those related to violations of the Emoluments Clauses. In early 2016, for example, CREW published a report on the post-2014 election contributions to new members of Congress by special interest PACs.64 CREW intended to review similar postelection campaign contributions to newly elected members in December 2016 and likely would have published a follow-up report, but did not do so due to the need to commit resources to researching Defendant’s business interests.
173. CREW also normally obtains and analyzes tax returns of nonprofit groups engaged in political activities starting in the middle of November, when most of those tax returns are filed with the IRS. In past years, that research and analysis regularly has resulted in reports to educate the public, and sometimes in complaints to the IRS. In November and December 2014, for instance, CREW published two blog posts based on findings from new nonprofit tax returns filed that November,65 and similarly published a blog post in November 2015 based on a nonprofit tax form filed that November.66 Although CREW was able to send requests to the IRS for nonprofit tax forms filed in November 2016, it has not been able to devote as much time or resources to analyzing and subsequently writing about the information in tax returns obtained
64 Welcome to Washington: New Members of Congress Attract Special Interest Money (May 9, 2016), http://bit.ly/2pvfkXh.
65 Matt Corley, Crossroads GPS and Kentucky Opportunity Coalition Have, Word for Word, the Same Mission (Nov. 20, 2014), http://bit.ly/2pv3gFr; Dr. Evil Meets the Kochtopus: Americans for Prosperity Now Supporting Berman Group (Dec. 2, 2014), http://bit.ly/2oGyv1T.
66 Matt Corley, Freedom Partners Admits Issue Ads are Aimed at Influencing Elections (Nov. 19, 2015), http://bit.ly/2oiTXYa.
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and published by other sources. As a result, for example, for the first time since 2013, CREW has not published any analysis of the annual tax form filed by Freedom Partners Chamber of Commerce, a critical component in a network of politically active nonprofit groups.
Perceptible Impairment of CREW’s Programmatic Functions and Fundamental Services 174. In addition to the diversion and depletion of CREW’s resources, CREW is further injured because Defendant’s violations of the Emoluments Clauses increase the costs to CREW to carry out its mission in the normal course of business. By accepting presents and emoluments through nonpublic channels, Defendant’s violations will deprive CREW of information about financial support Defendant will be receiving from foreign, state, and the federal governments, forcing CREW to expend resources to uncover his violations of the Emoluments Clauses. 175. Defendant is the most powerful and most prominent official of the United States government. If he is permitted to violate the Constitution or escape monitoring of his financial transactions for corruption—core evils CREW fights against—that would greatly undermine CREW’s mission, making it harder to hold less senior officials accountable. Thus, while it takes substantially greater resources to uncover Defendant’s financial dealings and review them for violations of the Emoluments Clauses and conflicts of interest than it does to complete such work with respect to other federal officials, it is essential that CREW prioritize Defendant’s violations of the Emoluments Clauses and conflicts of interest over those of lower level officials. The difficulty in addressing Defendant’s violations and conflicts, given lack of access to information, and the inability, with the resources available, to complete all of CREW’s other usual work, means Defendant’s violations of the Emoluments Clauses directly impede CREW’s ability to fulfill its mission.
43
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176. In the course of CREW’s normal activities and daily operations, and in order to

carry out CREW’s mission, CREW obtains information about financial support received by a

public official or candidate from public records and filings such as campaign-finance reports and

personal financial-disclosure forms. Such disclosures allow CREW to monitor public corruption

and inform the public about conflicts of interest. As alleged above, CREW uses that information

to craft reports and complaints and to advise policymakers and reporters as part of CREW’s

daily programmatic functions and its fundamental services.

177. Presents and emoluments provided to Defendant through his businesses,

however, will rarely be public—especially since Defendant has eschewed mechanisms for

transparency, such as releasing tax returns—and CREW will need to expend significant

resources to uncover those payments. For example, a foreign country’s payments for an opulent

reception at one of Defendant’s hotels, or the terms of a lease for a foreign-state-owned bank at

one of his building, are not public information. To try to determine if Defendant is receiving

prohibited foreign emoluments that raise concerns of corruption and conflicts of interest, and in

order for CREW to continue to carry out its mission through its daily operations and

fundamental services, CREW has needed and will need to continue expending significant

resources far in excess of those required if money transfers to Defendant occurred through more

traditional and transparent means.

178. Defendant’s activities are at loggerheads and directly conflict with CREW’s

mission.

179. Accordingly, Defendant’s use of a novel and opaque method for receiving illicit

and corrupting payments denies CREW information CREW would typically use to carry out its

daily programmatic operations and fundamental services. Defendant’s activities therefore

impede CREW’s operations, to the injury of CREW. 44

JA 63

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E. ROC United’s Members’ Injuries 180. ROC United, a nonprofit organization, has nearly 25,000 restaurant-employee members; through its project RAISE, it has over 200 restaurant members; and through its project Diners United, it has about 3,000 diner members. ROC United engages workers, employers, and consumers to improve wages and working conditions in the restaurant industry, including by providing job training, placement, leadership development, civic engagement, legal support, and policy advocacy. 181. A project of ROC United, RAISE seeks to work with restaurant owners to implement sustainable business models that champion living wages, basic benefits, fair promotion policies, environmental sustainability, safe and healthy workplaces, and other “high road” employer practices. 182. Each category of ROC United members has its own leadership committee. Worker members are organized in ten local offices and as online members. Those local offices send members to ROC United’s National Leadership Network. Restaurant members of RAISE, which include restaurants located in both Washington, D.C. and New York City, volunteer to serve on the RAISE steering committee. Consumer members of Diners United volunteer to serve on the Diners United board of directors. The National Leadership Network and RAISE steering committee elect worker and restaurant members to ROC United’s Board of Directors. 183. RAISE’s steering committee holds regular meetings and is responsible for determining and implementing RAISE’s agenda. 184. The majority of the members of the board of directors of ROC United are members of ROC United, elected through the three membership leadership committees.
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185. ROC United’s Board of Directors is responsible for determining and implementing its mission, monitoring its programs, strategic planning, fundraising, budgeting, and policy development and oversight.
186. Each leadership entity—National Leadership Network, RAISE’s steering committee, and Diners United’s board—conducts monthly calls with ROC United’s leadership and discusses campaigns and members’ needs and concerns.
187. Through their representation on the Board of Directors, and through the regular monthly calls between the three leadership committees and ROC United’s leadership, ROC United’s members play a substantial role in determining and implementing ROC United’s mission and initiatives.
188. Each RAISE member had an in-depth orientation prior to joining ROC United. RAISE has regular quarterly meetings of its membership and an annual conference.
189. About 16,000 of ROC United’s worker members have been through an inperson orientation; the remaining 9,000 worker members signed up online. Each of the ten local ROC United offices conducts monthly membership meetings for worker members, and there is an annual conference.
190. ROC United emails a monthly newsletter that is distributed to all of its restaurant and worker members and keeps them informed concerning the status of ROC United’s initiatives. ROC United also sends email blasts to its full membership on a weekly basis.
191. ROC United also owns and operates the restaurant COLORS in New York City and Detroit, and will soon be opening its Washington, D.C. location.
192. ROC United brings this action on behalf of its members to stop and prevent the violations of the Emoluments Clauses that Defendant has committed and will commit. As a direct result of Defendant’s refusal to avoid these and other violations of the Emoluments
46
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Clauses, ROC United’s members have been significantly injured and will continue to be injured

without relief from this Court.

193. While many individual members of ROC United, including members of

RAISE, could bring suit in their own right, it is more efficient for them to act as a group, through

ROC United. Since they seek only declaratory and injunctive relief, not damages, individual

actions would be unnecessarily duplicative.

194. It is consistent with ROC United’s mission to protect its worker members from

being deprived of wages or tips because they work for restaurants that are subject to loss of

business due to foreign states, the United States, or state or local governments patronizing

establishments with financial connections to Defendant rather than restaurants where ROC

United members work. It is further consistent with ROC United’s mission and its RAISE

project’s purpose to protect restaurant members, who are committed to fair business practices,

from being subject to loss of business due to foreign states, the United States, or state or local

governments patronizing establishments with financial connections to Defendant rather than

restaurant members of ROC United.

Injuries to ROC United’s Restaurant Members

195. ROC United’s members through its project RAISE include award-winning and

nationally renowned restaurants, including several that have earned prestigious Michelin stars.

Diners at these restaurants—especially those located in Washington, D.C. and New York—

frequently include diplomats and other officials of foreign states, the United States, and various

state and local governments traveling on government business, and thus paying for their meals

with government funds. Several of ROC United’s restaurant members also host and/or cater

government events, including for officials and employees of foreign states, the United States, and

various state and local governments. 47

JA 66

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196. Hotels owned by Defendant and those in which he has a financial interest include restaurants that compete directly with restaurant members of ROC United by providing the same or similar services in the same marketplace. For instance, Trump International Hotel & Tower New York includes restaurants Jean-George and Nougatine; Trump SoHo New York includes restaurant Koi SoHo; and Trump International Hotel, Washington, D.C. includes restaurant BLT Prime. Moreover, Defendant owns the restaurant in the Washington, D.C. hotel through various business entities and merely licenses the name from BLT Prime and pays BLT Prime to operate it.67 Several of the restaurant members of ROC United are located near these hotels with restaurants and compete for the same clientele.
197. Other properties owned by Defendant also include restaurants that directly compete with restaurant members of ROC United by providing the same or similar services in the same marketplace. For example, the Trump Grill is located in Trump Tower, and the World Bar is located in Trump World Tower, both in New York City. Further, Defendant, through various business entities, owns Trump Grill.
198. ROC United’s restaurant members have been harmed and will continue to be harmed by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local governments.
199. Officials of foreign states and of the United States and various state and local governments have purchased and will use their government’s funds to purchase food and services from one or more restaurants owned by Defendant, instead of from competing restaurants that are members of ROC United.
67 Jessica Sidman, How Donald Trump Lost His DC Restaurants, Washingtonian (Oct. 23, 2016), http://bit.ly/2htYzq9.
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200. Officials of foreign states and of the United States and various state and local governments who stay at Defendant’s hotels on official business or who are tenants in Defendant’s properties have and will pay with government funds to dine at restaurants located in those hotels or properties—instead of at competing restaurants that are members of ROC United.
201. Defendant also has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to restaurants located in hotels and properties owned by Defendant. For some restaurants, such as BLT Prime and Trump Grill, Defendant owns the restaurants directly, and revenue to those restaurants from foreign states and from the United States and state and local governments, is revenue to Defendant. As to other restaurants, the revenue that they receive, including from foreign states and from the United States and state and local governments, affect the amount of rent that hotels and properties in which Defendant is financially interested are able to charge the restaurants.
202. Additionally, as alleged herein, Defendant has used his official position as President to generate business to his hotel properties and their restaurants from officials of foreign states, the United States, and/or state and local governments. As set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community, members of which have specifically stated they are more likely to pay for goods and services at Defendant’s properties because of his official position.
203. Restaurant members of ROC United that compete with restaurants located in Defendant’s hotels and other properties have been harmed and will be harmed due to loss of business by Defendant’s receipt of benefits from foreign states, the United States, and various
49
JA 68

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state and local governments.

Injuries to ROC United’s Worker Members

204. ROC United’s worker members have also been injured in connection with

Defendant’s receipt of payments from foreign states, the United States, and state and local

governments, through his financial interest in businesses including hotels and restaurants.

205. ROC United’s worker members include employees at restaurants that compete

directly with restaurants located in Defendant-owned restaurants and restaurants in hotels and

other properties owned by Defendant or in which Defendant has a financial interest by providing

the same or similar services in the same marketplace. In particular, ROC United’s worker

members include employees of award-winning and nationally renowned restaurants located near

restaurants in which Defendant has a financial interest.

206. Diners at these restaurants—especially those located in Washington, D.C. and

New York—frequently include diplomats and other officials of foreign states, the United States,

and various state governments traveling on official business, and thus paying with their

government’s funds. Restaurants at which ROC United worker members are employed also host

and/or cater government events, including for officials and employees of foreign states, the

United States, and various state and local governments.

207. ROC United’s worker members have been harmed and will continue to be

harmed by Defendant’s receipt of payments from foreign states, the United States, and state and

local governments, through his financial interest in businesses including hotels and restaurants.

208. Officials of foreign states and of the United States and various state and local

governments have and will use their government’s funds to purchase meals from one or more

restaurants owned by Defendant or in which Defendant has a financial interest, instead of from

competing restaurants that employ ROC United’s members. 50

JA 69

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209. Officials of foreign states and of the United States and various state and local governments who stay at Defendant’s hotels have and will use their government’s funds to pay to dine at restaurants located in Defendant’s hotels, instead of at competing restaurants that employ ROC United’s members.
210. Defendant also has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to restaurants located in hotels and properties owned by Defendant. For some restaurants, such as BLT Prime and Trump Grill, Defendant owns the restaurants directly, and revenue to those restaurants from foreign states and from the United States and state and local governments is revenue to Defendant. As to other restaurants, the revenue that they receive, including from foreign states and from the United States and state and local governments, affect the amount of rent that Defendant’s hotels and properties are able to charge the restaurants
211. Additionally, as alleged herein, Defendant has used his official position as President to generate business to his hotel properties and their restaurants from officials of foreign states, the United States, and/or state and local governments. As set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community, members of which have specifically stated they are more likely to pay for goods and services at Defendant’s properties because of his official position.
212. ROC United workers’ members’ pay, including the amount received in tips, depends on the amount of business that the restaurants that employ them are able to attract. Accordingly, worker members of ROC United who are employed by restaurants that compete with restaurants located in Defendant’s hotels and other properties, including restaurants owned by Defendant, have been harmed and will be harmed, by loss of income, due to Defendant’s
51
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receipt of benefits from foreign states, the United States, and various state governments. Injuries to ROC United’s COLORS Restaurants 213. ROC United owns and operates the restaurant COLORS, which serves locally
sourced foods. Diners at COLORS include officials of foreign states or their subdivisions, the United States, and various state and local governments traveling on government business, and thus paying for their meals with government funds.
214. Hotels owned by Defendant and those in which he has a financial interest include restaurants that compete directly with COLORS by providing the same or similar services in the same marketplace. For instance, Trump SoHo New York includes restaurant Koi SoHo. COLORS NY is located in Manhattan near Trump SoHo and competes with restaurants located there for clientele.
215. COLORS has been harmed and will continue to be harmed by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local governments.
216. Officials of foreign states and of the United States and various state and local governments have purchased and will use their government’s funds to purchase food and services from one or more restaurants owned by Defendant, instead of from competing restaurants like COLORS.
217. Officials of foreign states and of the United States and various state and local governments who stay at Defendant’s hotels on official business or who are tenants in Defendant’s properties have and will pay with government funds to dine at restaurants located in those hotels or properties—instead of at competing restaurants like COLORS.
218. Defendant also has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to
52
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restaurants located in hotels and properties owned by Defendant. For some restaurants, such as BLT Prime and Trump Grill, Defendant owns the restaurants directly, and revenue to those restaurants from foreign states and from the United States and state and local governments is revenue to Defendant. As to other restaurants, the revenue that they receive, including from foreign states and from the United States and state and local governments, affect the amount of rent that hotels and properties in which Defendant is financially interested are able to charge the restaurants.
219. Additionally, as alleged herein, Defendant has used his official position as President to generate business to his hotel properties and their restaurants from officials of foreign states, the United States, and/or state and local governments. As set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community, members of which have specifically stated they are more likely to pay for goods and services at Defendant’s properties because of his official position.
220. COLORS has been harmed and will be harmed by loss of business due to Defendant’s receipt of benefits from foreign states, the United States, and various state and local governments.
F. Jill Phaneuf’s Injuries 221. Plaintiff Jill Phaneuf is an individual resident of Washington, D.C. She has worked for hotel owners in Washington, D.C. for several years. In her current position, she works with a hospitality company to book events for two hotels, the Kimpton Carlyle Hotel and the Kimpton Glover Park Hotel. She specifically seeks to book embassy functions and political functions involving foreign governments, in addition to other events. Her compensation depends
53
JA 72

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in large part on payment of a percentage of the gross receipts arising from events that she generates for the hotels.
222. The hotels for which Ms. Phaneuf seeks to book embassy and political functions and other events compete with hotels owned by Defendant or in which Defendant has a financial interest.
223. Hotels owned by Defendant and those in which he has a financial interest compete directly with hotels for which Ms. Phaneuf works to book events by providing the same or similar services in the same marketplace. For example, as set forth above at ¶¶ 60-63, Defendant has promoted his properties, including specifically Trump International Hotel in Washington, D.C., and the Hotel has specifically sought to generate business from the diplomatic community.
224. Foreign states have and will host events at hotels owned by Defendant, instead of at competing hotels.
225. As an individual working to book events at competitor hotels, Ms. Phaneuf will be injured due to loss of commission-based income.
226. Defendant has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to hotels owned by Defendant.
227. Ms. Phaneuf will continue to be harmed by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local government.
G. Eric Goode’s Injuries 228. Plaintiff Eric Goode is an individual resident of New York, New York. Mr. Goode is the owner of several celebrated hotels, restaurants, bars, and event spaces in New York.
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These include the Maritime Hotel located in Chelsea; the Bowery Hotel and Ludlow Hotel, both in the Lower East Side; and the Jane Hotel in the Meatpacking District. Among the restaurants that Mr. Goode owns are the Park, Waverly Inn, and Gemma, the last of which is located in the Bowery Hotel.
229. Travel & Leisure has called Mr. Goode’s hotels “downtown landmarks known for their stylish accommodations and nightlife” and his restaurants “buzzy.”68 The Bowery Hotel has been referred to as an “essential New York hotel” and “neighborhood gamechanger,”69 which offers “the quintessential New York experience.”70 Its restaurant, Gemma, has been described as one of New York City’s best hotel restaurants with “essential al fresco dining.”71
230. Diners at Mr. Goode’s restaurants and guests at his hotels frequently include diplomats and other officials of foreign states, the United States, and various state governments traveling on official business, and thus paying with their government’s funds.
231. Mr. Goode’s hotels and restaurants compete with hotels and restaurants owned by Defendant, and with restaurants located in hotels and other properties owned by Defendant, or in which Defendant has a financial interest, by providing the same or similar service in the same marketplace.
68 Jacqueline Gifford, Hotelier Eric Goode’s New York City Hotspots, Travel & Leisure (Nov. 10, 2016), http://tandl.me/2qUjUSx.
69 Jessica Dailey, The 18 Essential New York City Hotels, Curbed New York (Nov. 4, 2014), http://bit.ly/2q6SPc2.
70 Catherine Eade, Where the Beckhams and Kardashians REALLY stay: Inside the Big Apple hotels hosting the A-list for New York Fashion Week, Daily Mail (Sept. 11, 2014), http://dailym.ai/1oACWl2.
71 Greg Morabito, A Guide to New York City’s Best Hotel Restaurants, Eater New York (June 24, 2013), http://bit.ly/2qUqN6s.
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232. Foreign states have hosted and will host events at hotels and restaurants in which Defendant has financial interests, instead of at competing hotels and restaurants.
233. Defendant has benefitted and will benefit in several respects from payments made from foreign states and from the United States and state and local governments to hotels and restaurants owned by Defendant.
234. As a hotel and restaurant owner, Mr. Goode will be harmed due to loss of revenue by Defendant’s ongoing financial interest in businesses which receive payments from foreign states, the United States, or state or local government.
H. Plaintiffs’ Injuries Warrant an Equitable Remedy 235. Except for those expenses involved in preparing for this specific litigation, CREW would have suffered the injuries described even if it had not filed this case. 236. So long as violations of the Emoluments Clauses are permitted to continue, CREW will continue to suffer from interference with its mission, and with diversion of resources to investigate, track, and educate around violations of the Emoluments Clauses. Monetary relief could not make up for the frustration of CREW’s mission that the emoluments violations cause. 237. The declaratory and injunctive relief that CREW is seeking would provide a remedy for the many injuries described above. If such relief is granted, resolving the disputes between CREW and Defendant over the Emoluments Clauses and enjoining Defendant from violating the Emoluments Clauses, CREW would no longer suffer the diversion and depletion of resources described above. 238. So long as violations of the Emoluments Clauses are permitted to continue, ROC United’s members will continue to suffer from unfair competition as foreign states, the United States, and state and local governments divert their business to restaurants in which Defendant has a financial interest. The ongoing nature of the injury makes monetary relief an
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inadequate remedy for the injuries that emoluments violations cause. 239. The declaratory and injunctive relief that ROC United is seeking would provide
a remedy for the many injuries described above. If such relief is granted, resolving the disputes between ROC United and Defendant over the Emoluments Clauses and enjoining Defendant from violating the Emoluments Clauses, ROC United members would no longer suffer the injuries described above.
240. So long as violations of the Emoluments Clauses are permitted to continue, Ms. Phaneuf will continue to suffer from unfair competition as foreign states, the United States, and state and local governments divert their business to hotels in which Defendant has a financial interest. The ongoing nature of the injury makes monetary relief an inadequate remedy for the injuries that emoluments violations cause.
241. The declaratory and injunctive relief that Ms. Phaneuf is seeking would provide a remedy for the injuries described above. If such relief is granted, resolving the disputes between Ms. Phaneuf and Defendant over the Emoluments Clauses and enjoining Defendant from violating the Emoluments Clauses, Ms. Phaneuf would no longer suffer the injuries described above.
242. So long as violations of the Emoluments Clauses are permitted to continue, Mr. Goode will continue to suffer from unfair competition as foreign states, the United States, and state and local governments divert their business to hotels and restaurants in which Defendant has a financial interest. The ongoing nature of the injury makes monetary relief an inadequate remedy for the injuries that emoluments violations cause.
243. The declaratory and injunctive relief that Mr. Goode is seeking would provide a remedy for the injuries described above. If such relief is granted, resolving the disputes between Mr. Goode and Defendant over the Emoluments Clauses and enjoining Defendant from
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violating the Emoluments Clauses, Mr. Goode would no longer suffer the injuries described above.
I. Other Injuries 244. Beyond the injuries described above, Defendant’s unconstitutional conduct has caused added financial costs and greater logistical difficulties with respect to informing—and helping to protect from corrupt and unethical manipulation—innocent and unaware third parties, including consumers, workers, and small businesses. As the Executive Branch, led by Defendant, shapes the strategy, substance, and timing of its trade and other commercial and financial negotiations with foreign governments, these third parties are at risk of having their economic interests and financial welfare bartered away, with Defendant rewarding foreign governments in connection with his own business interests. 245. With efforts to educate these unknowing third parties obstructed, the consumers, workers, and small businesses, who may not compete directly with the Defendant, but who will surely be impacted by his biased decision-making, will remain in the dark about the conflicting, dual roles that Defendant plays in negotiating with foreign governments, as President and businessman. 246. Competitors of Defendant’s hotels, golf courses, and other properties and businesses also are injured, financially, by the uneven and unfair playing field created by Defendant’s unconstitutional conduct. Those injuries occur both when the competitors lose business directly to Defendant’s businesses and when the competitors’ brands lose economic value in comparison with the enhanced value of Defendant’s brands, including due to foreign and state governments and their agents and instrumentalities seeking to curry favor with Defendant by favoring his businesses.
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V. CLAIMS COUNT I Violations of the Foreign Emoluments Clause (Declaratory and Injunctive Relief) 247. Plaintiffs reallege and incorporate herein by reference each and every foregoing paragraph of this Complaint as if set forth in full. 248. Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause. 249. Together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including without limitation, monetary and non-monetary gifts or transactions, transactions granting special treatment, and transactions above marginal cost. 250. The phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof. 251. Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” violates the Foreign Emoluments Clause. 252. As described more fully in paragraphs 42 to 128 herein, Defendant has committed violations of the Foreign Emoluments Clause and, without this Court’s intervention, will continue to commit violations of the Foreign Emoluments Clause. Defendant is and will be accepting “present[s]” or “Emolument[s]” directly from—or from agents or instrumentalities of—China, the United Arab Emirates, Kuwait, Indonesia, Saudi Arabia, Bahrain, Azerbaijan, Afghanistan, Qatar, India, Georgia, the United Kingdom, and other “foreign State[s],” without seeking or obtaining “the Consent of the Congress.” As described more fully in paragraphs 42 to
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128 herein, Defendant is committing or will commit these violations in connection with transactions involving New York’s Trump Tower, the Trump International Hotel Washington, D.C., Trump World Tower, restaurants Defendant owns or that are located in his hotels or other properties, the television program “The Apprentice” and its spinoffs and international versions, and other business and property interests and transactions in the United States and abroad.
253. There is an actual controversy between Plaintiffs and Defendant as to the meaning of the Foreign Emoluments Clause and its application to Defendant and his conduct.
254. Specifically, Plaintiffs allege that: (a) Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause; (b) together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including above- or below-market rates; (c) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; and (d) Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” constitutes a violation of the Foreign Emoluments Clause. Plaintiffs also allege that Defendant, through the conduct described more fully in paragraphs 42 to 128 herein, is violating or will violate the Foreign Emoluments Clause, and that no proposed plan announced by Defendant or his attorneys can make this conduct constitutional or otherwise remedy these constitutional violations. Defendant disagrees with each of these positions.
255. As a direct result of these violations of the Foreign Emoluments Clause, Plaintiffs have already suffered significant harm. Plaintiffs stand to suffer additional significant harm directly from the further occurrence of these violations.
256. Plaintiffs are entitled to bring this action pursuant to this Court’s inherent ability to award equitable relief where a federal official violates or is about to violate the U.S.
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Constitution or federal law.

257. Plaintiffs are entitled to injunctive relief to stop and prevent the above-

mentioned Foreign Emoluments Clause violations and any other Foreign Emoluments Clause

violations. This Court has the power to grant such relief pursuant to its inherent authority to

grant equitable relief and 28 U.S.C. § 1331. Such relief would enjoin Defendant from violating

the Foreign Emoluments Clause, as construed by this Court, including requiring Defendant to

release financial records sufficient to confirm that Defendant is not engaging in any further

transactions that would violate the Foreign Emoluments Clause. Without such relief, Plaintiffs

will suffer significant injury.

258. Plaintiffs are entitled to declaratory relief under 28 U.S.C. § 2201. A

declaration resolving the actual controversy between Plaintiffs and Defendant—as to the

meaning of the Foreign Emoluments Clause and whether Defendant’s conduct is violating and

will violate the Foreign Emoluments Clause—will serve a useful purpose in settling the legal

issues in this action and offering relief from uncertainty. Without this relief, Plaintiffs will

continue to suffer significant injury.

COUNT II Violations of the Domestic Emoluments Clause
(Declaratory and Injunctive Relief)

259. Plaintiffs reallege and incorporate herein by reference each and every foregoing

paragraph of this Complaint as if set forth in full.

260. Defendant is the President of the United States.

261. The phrase “any other Emolument” under the Domestic Emoluments Clause

covers monetary and non-monetary payments or transactions, transactions granting special

treatment, and transactions above marginal cost, excluding presents and the President’s

“Compensation” as set by Congress. 61

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262. The phrase “the United States, or any of them” in the Domestic Emoluments Clause includes any part of the federal government, any state government, any local government, and any agent or instrumentality thereof.
263. Defendant’s acceptance of an “any other Emolument” from “the United States, or any of them” violates the Domestic Emoluments Clause.
264. As described more fully in paragraphs 129 to 149 herein, Defendant has committed violations of the Domestic Emoluments Clause and, without this Court’s intervention, will continue to commit violations of the Domestic Emoluments Clause. Defendant has accepted and will accept “Emolument[s]” from the GSA and the National Park Service, instrumentalities of the United States. As described more fully in paragraphs 129 to 149 herein, Defendant committed and will commit these violations in connection with transactions involving the Trump International Hotel, and other business and property interests and transactions in the United States. Such emoluments are not part of Defendant’s congressionally authorized “Compensation.”
265. As a direct result of these violations of the Domestic Emoluments Clause, Plaintiffs have already suffered significant harm. Plaintiffs also stand to suffer additional significant harm directly from the further occurrence of these violations.
266. Plaintiffs are entitled to bring this action pursuant to this Court’s inherent authority to award equitable relief where a federal official violates or will violate the U.S. Constitution or federal law.
267. There is an actual controversy between Plaintiffs and Defendant as to the meaning of the Domestic Emoluments Clause and its application to Defendant and his conduct. Specifically, Plaintiffs allege that: (a) the phrase “any other Emolument” under the Domestic Emoluments Clause covers monetary and non-monetary payments or transactions, transactions
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granting special treatment, and transactions above marginal cost, excluding presents and the

President’s “Compensation” as set by Congress as of the time of the President’s inauguration; (b)

the phrase “the United States or any of them” under the Domestic Emoluments Clause includes

any part of the federal government, any state government, and any agent or instrumentality

thereof; and (c) Defendant’s acceptance of an “Emolument” from “the United States, or any of

them” constitutes a violation of the Domestic Emoluments Clause. Plaintiffs have also has taken

the positions that Defendant, through the conduct described more fully in paragraphs 129 to 149

herein, is violating or will violate the Domestic Emoluments Clause, and that no proposed plan

announced by Defendant or his attorneys can make this conduct constitutional or otherwise

remedy these constitutional violations. Defendant disagrees with each of these positions.

268. Plaintiffs are entitled to injunctive relief to stop and prevent the above-

mentioned Domestic Emoluments Clause violations and any other Domestic Emoluments Clause

violations. This Court has the power to grant such relief pursuant to its inherent authority to

grant equitable relief and 28 U.S.C. § 1331. Such relief would enjoin Defendant from violating

the Domestic Emoluments Clause, as construed by this Court, including requiring Defendant to

release financial records sufficient to confirm that Defendant is not engaging in any further

transactions that would violate the Domestic Emoluments Clause. Without such relief, Plaintiffs

will suffer significant injury.

269. Plaintiffs are entitled to declaratory relief under 28 U.S.C. § 2201. A

declaration resolving the actual controversy between Plaintiffs and Defendant—as to the

meaning of the Domestic Emoluments Clause and whether Defendant’s conduct is violating and

will violate the Domestic Emoluments Clause—will serve a useful purpose in settling the legal

issues in this action and offering relief from uncertainty. Without this relief, Plaintiffs will

continue to suffer significant injury. 63

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VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in their favor and against Defendant, consisting of: (a) A declaratory judgment, stating that: (1) Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause; (2) together, the phrases “present” and “Emolument . . . of any kind whatever” under the Foreign Emoluments Clause cover anything of value, including without limitation, monetary and non-monetary gifts or transactions, transactions granting special treatment, and transactions above marginal cost; (3) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; (4) Defendant’s acceptance of a “present” or “Emolument” from “any King, Prince, or foreign State,” without “the Consent of the Congress,” constitutes a violation of the Foreign Emoluments Clause; (5) the phrase “any other Emolument” under the Domestic Emoluments Clause covers monetary and non-monetary payments or transactions, transactions granting special treatment, and transactions above marginal cost, excluding presents and the President’s “Compensation” as set by Congress at the time of the President’s inauguration; (6) the phrase “the United States or any of them” under the Domestic Emoluments Clause includes any part of the federal government, any state government,
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any local government, and any agent or instrumentality thereof; (7) Defendant’s acceptance of an “Emolument” from “the United States or
any of them” violates the Domestic Emoluments Clause; (8) Defendant’s conduct, as described more fully in paragraphs 42 to 128
herein, violates or will violate the Foreign Emoluments Clause; and (9) Defendant’s conduct, as described more fully in paragraphs 129 to 149
herein, violates or will violate the Domestic Emoluments Clause. (b) Injunctive relief, enjoining Defendant from violating the Foreign and Domestic Emoluments Clauses, as construed by this Court, and requiring Defendant to release financial records sufficient to confirm that Defendant is not engaging in any further transactions that would violate the Emoluments Clauses; (c) Such other and further relief as this Court may deem just and proper, including reasonable attorneys’ fees and costs under 28 U.S.C. § 2412(a) and (d) or as otherwise appropriate.
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Dated: May 10, 2017
LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767 ERWIN CHEMERINSKY* Dean of the School of Law University of California, Irvine 401 East Peltason Drive Irvine, CA 92697 (949) 824-7722 ZEPHYR TEACHOUT* Associate Professor of Law Fordham Law School 150 West 62nd Street New York, NY 12580 (646) 312-8722
*Affiliations noted for identification purposes only

GUPTA WESSLER PLLC
By: s/ Deepak Gupta Deepak Gupta
AMBASSADOR (RET.) NORMAN L. EISEN Chair, Board of Directors RICHARD W. PAINTER Vice Chair, Board of Directors NOAH BOOKBINDER ADAM J. RAPPAPORT STUART C. MCPHAIL Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W., 6th Floor Washington, D.C. 20001 (202) 408-5565
Attorneys for Plaintiff Citizens For Responsibility And Ethics In Washington
DEEPAK GUPTA** JONATHAN E. TAYLOR RACHEL BLOOMEKATZ MATTHEW SPURLOCK Gupta Wessler PLLC 1735 20th Street, N.W. Washington, D.C. 20009 (202) 888-1741 deepak@guptawessler.com
JOSEPH M. SELLERS** DANIEL A. SMALL CHRISTINE E. WEBBER GEORGE F. FARAH Cohen Milstein Sellers & Toll PLLC 1100 New York Ave., N.W. Suite 500 Washington, DC 20005 202-408-4600 jsellers@cohenmilstein.com
Attorneys For Plaintiffs Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers (ROC) United, Inc., Jill Phaneuf, and Eric Goode
**Admitted pro hac vice

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant.

Civil Action No. 1:17-cv-00458-GBD

DECLARATION OF DEEPAK GUPTA

I, Deepak Gupta, declare as follows:

1.

I am an attorney for the plaintiffs in this case, founding principal of the law firm

Gupta Wessler PLLC, and a member in good standing of the bar of the District of Columbia. I

submit this declaration in support of the plaintiffs’ opposition to the defendant’s motion to dismiss.

2.

Attached is a true and correct copy of an unpublished draft article by John

Mikhail entitled The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523-1806. In

an appendix that is also attached, the article includes over 100 original images of English and

legal dictionaries published between 1523 and 1806 and complete transcripts and tables of the

definitions contained therein. I obtained this document from the Social Science Research

Network (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995693).

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Dated: August 4, 2017

/s/ Deepak Gupta __________________________ Deepak Gupta

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THE DEFINITION OF “EMOLUMENT” IN ENGLISH LANGUAGE AND LEGAL DICTIONARIES, 1523-1806
John Mikhail*
In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-andemployment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”
Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government might seek to rely on its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published from 1523 to 1792.
Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition—“profit arising from office or employ”—
* Associate Dean for Research & Academic Affairs, Professor of Law, and Agnes N. Williams Research Professor, Georgetown University Law Center. An early version of this paper was presented at a conference on Historical Semantics and Legal Interpretation sponsored by the Neubauer Collegium for Culture and Society at the University of Chicago. I wish to thank Alison LaCroix and Jason Merchant for inviting me to speak at this stimulating gathering of historians, linguists, and legal scholars working at the intersections of these fields. Thanks also to Alison, Jason, Jill Anderson, Will Baude, Elizabeth Coppock, Anastasia Giannakidou, Neal Goldfarb, Brian Slocum, Lawrence Solan, Lea VanderVelde and the other conference participants for their questions and feedback. Emily Kadens, Matthias Mahlmann, Simon Stern, and Georgia Strati gave generously of their time and expertise at an early stage of this research, for which I am grateful. Mary Sarah Bilder, Jud Campbell, Irv Gornstein, Andy Grewal, Greg Klass, Marty Lederman, Richard Primus, Jack Rakove, Gautham Rao, Jed Shugerman, Lawrence Solum, and David Vladeck also provided helpful feedback and encouragement. Two images of B.N. Defoe’s Compleat English Dictionary (1st ed. 1735) are reproduced here courtesy of the Folger Shakespeare Library; I thank Abbie Weinberg for her assistance in providing these images and the library for its permission to use them. Hannah Mikhail and Andrew Mikhail kindly helped me proofread tables and tabulate definitions. Finally, I wish to thank Georgetown law student Genevieve Bentz for her truly extraordinary assistance with the design and execution of this project. She deserves the lion’s share of credit for locating, transcribing, and assembling many of the documentary records included in the appendices, as well as for other outstanding contributions too numerous and varied to mention.
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2

DRAFT: JULY 12, 2017

appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument”—two broad and two narrow—is, therefore, highly misleading.
The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific” meaning, is also inconsistent with the historical record. A vast quantity of evidence already available in the public domain suggests that the founding generation used the word “emolument” in broad variety of contexts, including private commercial transactions. This Article adds to that emerging historical consensus by documenting that none of the most significant common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms. In fact, this term is mainly used in these legal dictionaries to define other, less familiar words and concepts. These findings reinforce the conclusion that “emolument” was not a term of art at the founding with a highly restricted meaning.
Finally, the Article calls attention to the fact that the government’s dictionarybased argument is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries—Barclay (1774) and Trusler (1766)—on which DOJ relies in its brief to defend its “office-and-employmentspecific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as the Journals of the Continental Congress, Letters of Delegates to Congress, Farrand’s Records, Elliot’s Debates, or the Documentary History of the Ratification of the Constitution. By contrast, all of the dictionaries that the founding generation did possess and use regularly—e.g., Johnson, Bailey, Dyche & Pardon, Ash, and Entick—define “emolument” in the broad manner favoring the plaintiffs: “profit,” “gain,” “advantage,” or “benefit.”

To document its primary claims, the Article includes over 100 original images of English and legal dictionaries published between 1523 and 1806, as well as complete transcripts and easy-to-read tables of the definitions contained therein. A second study is currently underway of dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Collectively, these inquiries are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, scholars, and the broader public about the historical meaning of this important yet obscure constitutional term.

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INTRODUCTION……………………………………………………………………………...5

I.

FINDINGS AND DISCUSSION…………………………………………………………8

II. THE FOUNDERS’ DICTIONARIES…………………………………………………….13

III. OTHER HISTORICAL ARGUMENTS…………………………………………..............18

IV. SOURCES, METHODS, AND DOCUMENTATION……………………………………… 24

CONCLUSION………………………………………………………………………………..26

APPENDIX A: “EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806 …………A-1

A. Definitions of “Emolument” in English Dictionaries…………………………. A-2 B. Statistical and Longitudinal Analyses…………………………………………. A-5 C. Transcripts……………………………………………………………………...A-6 D. Original Images ……………………………………………………………….. A-10
1. Cawdrey (1604;1617).........................................................................A-10 2. Bullokar (1616;1719)......................................................................... A-12 3. Cockeram (1623;1623).......................................................................A-14 4. Blount (1656;1661)............................................................................ A-16 5. Philips (1658;1720 ............................................................................ A-18 6. Coles (1676;1679)..............................................................................A-20 7. Kersey (1702;1713)............................................................................A-22 8. Cocker (1704;1724) ............................................................................A-24 9. [anon] (1707;1707)............................................................................A-26 10. Bailey (1721;1724)............................................................................A-28 11. Bailey (1730;1730)............................................................................A-30 12. Manlove (1735;1741)........................................................................A-32 13. Defoe (1735;1735)............................................................................ A-34 14. Dyche & Pardon (1735;1754)...........................................................A-36 15. Martin (1749;1749)...........................................................................A-38 16. [anon](1753;1758)............................................................................A-40 17. Wesley (1753;1777)...........................................................................A-42 18. Johnson (1755;1783).........................................................................A-44 19. Scott (1755;1755)..............................................................................A-46 20. Buchanan (1757;1757)......................................................................A-48 21. Rider (1759;1759).............................................................................A-50 22. Bellamy (1760;1764).........................................................................A-52 23. Fenning (1761;1775).........................................................................A-54 24. Donaldson (1763;1763).....................................................................A-56 25. Allen (1765;1765)..............................................................................A-58 26. Entick (1765;1780)............................................................................A-60 27. Barlow (1772;1772).......................................................................... A-62 28. Kenrick (1773;1773)..........................................................................A-64 29. Fisher (1773;1788)............................................................................A-66 30. Barclay (1774;1774)......................................................................... A-68

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31. Ash (1775;1775)................................................................................ A-70 32. Perry (1775;1775).............................................................................A-72 33. Walker (1775; 1791) ......................................................................... A-74 34. Sheridan (1780;1790)........................................................................A-76 35. Lemon (1783;1783) ...........................................................................A-78 36. Scott (1786;1810)..............................................................................A-80 37. Jones (1798; 1812)............................................................................A-82 38. Browne (1800;1822)..........................................................................A-84 39. Fulton (1802;1823)...........................................................................A-86 40. Webster (1806;1806).........................................................................A-88
APPENDIX B: “EMOLUMENT” IN LEGAL DICTIONARIES, 1523-1792...………………………A-90
A. Definitions of “Emolument” in Legal Dictionaries...…………………………. A-91 B. Other Uses of “Emolument” in Legal Dictionaries……………………………A-92 C. Transcripts ……………………………………………………………………. .A-93 D. Original Images
1. Rastell (1523;1523)..............................................................................A-95 2. Cowell (1607;1607)..............................................................................A-97 3. Leigh (1652;1658)................................................................................A-99 4. Sheppard (1656;1656)..........................................................................A-101 5. Spelman (1664; 1664)..........................................................................A-103 6. Blount (1670; 1691).............................................................................A-105 7. Jacob (1729; 1729)..............................................................................A-108 8. Cunningham (1764; 1764)...................................................................A-112 9. Kelham (1779;1779)............................................................................ A-116 10. Burn (1792;1792)................................................................................A-118
APPENDIX C: “EMOLUMENT” IN SYNONYMY DICTIONARIES, 1748-1813…………………...A-121
A. Explanations of “Emolument” in Synonymy Dictionaries……………………..A-122 B. Side-by-side Comparison of Girard (1748) and Trusler (1766) ……………….A-123 C. Original Images………………………………………………………………...A-125
1. Girard (1718;1748)..............................................................................A-125 2. Trusler (1766;1766).............................................................................A-127 3. Piozzi (1794;1794)...............................................................................A-130 4. Taylor (1813;1813)..............................................................................A-131

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THE DEFINITION OF “EMOLUMENT” IN ENGLISH LANGUAGE AND LEGAL DICTIONARIES, 1523-1806 5
INTRODUCTION
On June 9, 2017, the U.S. Department of Justice (DOJ) filed a brief in support of President Donald Trump’s Motion to Dismiss in CREW et al. v. Trump,1 one of three emoluments lawsuits currently pending against the President.2 In its brief, DOJ argues inter alia that:
x “Plaintiffs’ expansive reading of the Emoluments Clauses is contrary to the original understanding of the Clauses and to historical practice. The term ‘Emolument’ in this context refers to benefits arising from personal service in an employment or equivalent relationship.”3
x “Neither the text nor the history [of the Emoluments Clauses] shows that they were intended to reach benefits arising from a President’s private business pursuits having nothing to do with his office or personal service to a foreign power.”4
x “At the time of the Nation’s founding . . . an ‘emolument’ was a common characteristic of a federal office and comprehensively described ‘every species of compensation or pecuniary profit derived from a discharge of the duties of the office.’”5
x In light of “common usage” at the time of the founding, “the term ‘Emolument’ in the Emoluments Clauses should be interpreted to refer to a ‘profit arising from an office or employ.’”6
x “The history and purpose of the [Emoluments Clauses] is devoid of concern about private commercial business arrangements.”7
1 Memorandum of Law in Support of Defendant’s Motion to Dismiss, Citizens for Responsibility and Ethics in Washington et al., v. Donald J. Trump (S.D.N.Y., June 9, 2017) (Case 1:17-cv-00458-RA) (henceforth ‘‘DOJ Brief’’).
2 See Citizens for Responsibility and Ethics in Washington et al., v. Donald J. Trump (S.D.N.Y., May 10, 2017) (Case 1:17-cv-00458-RA); The District of Columbia and The State of Maryland v. Donald J. Trump (D.C. MD, June 12, 2017) (Case 8:17-cv-01596-PJM); Senator Richard Blumenthal et al., v. Donald J. Trump (D.D.C., June 14, 2017) (Case 1:17-cv-01154). All three cases turn on the application of two constitutional provisions to President Trump, the Foreign Emoluments Clause and the Domestic Emoluments Clause. The first clause provides that:
[N]o Person holding any Office of Profit or Trust under them [i.e., the United States], 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. U.S. Const. art. I, §9, cl. 8. The second clause provides that: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. U.S. Const. art. II, §1, cl. 7. 3 DOJ Brief, supra note 1, at 2-3 4 Id. at 26. 5 Id. (quoting Hoyt v. United States, 51 U.S. 109, 135 (1850) (emphasis omitted)). 6 Id. at 28 (quoting JAMES BARCLAY, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY ON A NEW PLAN (1774)). 7 Id. at 34.
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To defend these and other historical claims,8 DOJ leans on two founding-era dictionaries: A Complete and Universal English Dictionary on a New Plan by James Barclay9 and The Difference between Words, Esteemed Synonymous, in the English Language by John Trusler.10 According to DOJ, Barclay defines “emolument” as “profit arising from an office or employ,”11 while Trusler explains that the term “relates to commissions and employments; intimating, not only the salaries, but, all other perquisites.”12 Repeatedly invoking these definitions in support of President Trump’s Rule 12(b)(6) motion,13 DOJ argues that they justify what it calls an “office-and-employment-specific construction”14 of “emolument,” which, it claims, categorically precludes the possibility that any of the profits, gains, or advantages President Trump or his businesses receive from foreign, federal, or state governments constitute violations of the Emoluments Clauses.15
DOJ concedes that “the plaintiffs’ definition of [‘emolument’] as encompassing ‘anything of value’ resembles a broader definition that also existed at the time of the founding.”16 It insists, however, that “common usage”17 at the time reflects Barclay’s narrower definition.18 DOJ also argues that if the term “emolument” is ambiguous, that ambiguity ought to be resolved in favor of Barclay’s definition.19 For these and other reasons, DOJ maintains, the plaintiffs fail to state a valid claim upon which relief can be granted.20
8 See, e.g., id. at 27 (‘‘The Emoluments Clauses Prohibit Benefits Arising from the U.S. Official’s Provision of Service Pursuant to an Office or Employment’’); id. (“[T]he Emoluments Clauses apply only to the receipt of compensation for personal services and to the receipt of honors and gifts based on official position”); id. (“[T]he Emoluments Clauses . . . do not prohibit any company in which the President has a financial interest from doing business with any foreign, federal, or state instrumentality”). DOJ does not identify these additional claims as originalist, but their context implies that it regards them as such.
9 JAMES BARCLAY, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY ON A NEW PLAN (1774).
10 JOHN TRUSLER, THE DIFFERENCE BETWEEN WORDS, ESTEEMED SYNONYMOUS, IN THE ENGLISH LANGUAGE (1766).
11 DOJ Brief, at 28 (quoting BARCLAY). 12 Id. at 29-30 (quoting TRUSLER). 13 See, e.g., id. at 28 (quoting BARCLAY); id. at 30 (quoting BARCLAY); id. at 31 (paraphrasing BARCLAY); id. at 29-30 (quoting TRUSLER). 14 Id. at 32. See also id. (arguing that ‘‘the term ‘Emolument’ . . . should be understood as office-and-employment specific’’); id. at 40 (‘‘For over two centuries, the Emoluments Clauses have been interpreted and applied in an office-and-employment specific manner’’). 15 Id. at 27-32; see generally id. at 26-48. As Marty Lederman observes, DOJ’s conclusion does not necessarily follow from its premises. Even if one accepts the government’s narrow definition of the term ‘‘emolument,’’ at least some of the conduct alleged by the CREW plaintiffs in their complaint appears to violate the Foreign Emoluments Clause. See Marty Lederman, How the DOJ Brief in CREW v. Trump Reveals that Donald Trump is Violating the Foreign Emoluments Clause, TAKE CARE BLOG (June 12, 2017). 16 Id. at 30. 17 Id. at 28. 18 Id. 19 Id. 20 Id. at 51.
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THE DEFINITION OF “EMOLUMENT” IN ENGLISH LANGUAGE AND LEGAL DICTIONARIES, 1523-1806 7
There are significant problems with these arguments and other aspects of the government’s brief, several of which have been identified by other commentators.21 The core problem I wish to highlight in these remarks concerns the government’s historical definition of “emolument.” Simply put, that definition is inaccurate, unrepresentative, and misleading. Particularly because DOJ might seek to utilize this flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so on the basis of a comprehensive study of how “emolument” is defined in both English language dictionaries published from 1604 to 1806 and English legal dictionaries published from 1523 to 1792.
In what follows, I first summarize the main findings of this investigation (Part I), followed by some brief remarks about the dictionaries we have good reason to believe the founding generation of Americans actually owned, used, and relied upon (Part II). Next, I consider some of DOJ’s other historical arguments (Part III), before turning to a summary of the sources, methods, and documentation used in this study (Part IV). Finally, I conclude. The bulk of the Article consists of three appendices, which reproduce over one hundred images of English language and legal dictionaries published from 1523 to 1806, along with easy-to-read tables and transcripts of the definitions contained therein. The first appendix also contains some modest statistical and longitudinal analyses of this database of definitions. A second inquiry is currently underway of English dictionaries from 1806 to the present, which seeks to determine how and why definitions of “emolument” may have changed over time. Comparable investigations of case reports, abridgments, treatises, and other historical materials are also in progress.
Collectively, these investigations are designed to accomplish more than simply aiding judges and holding lawyers’ feet to the fire in the emoluments cases now pending in three federal courts. They also provide a basis for educating members of Congress, government officials, journalists, and the wider public about the historical meaning of this important yet obscure constitutional term. Finally, these inquiries also seek to contribute to a growing body of research in historical semantics and legal interpretation, an emerging field that seeks to determine more precisely how lexical shifts have occurred over time and to evaluate their implications for constitutional and statutory interpretation. Among other things, the studies undertaken here illustrate how a more thorough and systematic investigation
21 See, e.g., Jane Chong, Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass? LAWFARE (July 1, 2017); Michael C. Dorf, Trump Emoluments Argument Mirrors His ‘‘Just a Hope,’’ Comey Defense, TAKE CARE BLOG (June 14, 2017); Andy Grewal, Three Reactions to the DOJ’s Brief in CREW v. Trump, NOTICE & COMMENT (June 10, 2017); Lederman, supra note 15; Leah Litman, The Two Sides of Donald Trump, As Reflected in The Government’s Motion to Dismiss the CREW Emoluments Case, TAKE CARE BLOG (June 12, 2017); Richard Primus, Two Thoughts on the Government’s Motion to Dismiss in the CREW Emoluments Case, BALKINIZATION (June 10, 2017); Simon Stern, Presents, Emoluments, and Corruption, BALKINIZATION (June 21, 2017).
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of historical dictionaries and other documentary records can be used to assist in these broader endeavors.

I. FINDINGS AND DISCUSSION
With respect to English language dictionaries, this Article makes at least four specific contributions. First, it demonstrates that one or more elements of the broad definition of “emolument” DOJ rejects in its brief—“profit,” “advantage,” “gain,” or “benefit,”—can be found in every known English language dictionary definition of “emolument” published between 1604 (when the first English language dictionary was published)22 and 1806 (when Noah Webster published his first American dictionary).23 Second, it demonstrates that over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.”24 By contrast, DOJ’s preferred definition—“profit arising from an office or employ”—appears in less than 8% of these dictionaries.25 Third, this research documents that even these outlier dictionaries always include “gain, or advantage” in their definitions, a finding obscured by DOJ’s selective quotation of Barclay in its brief.26 Finally, this report highlights the fact that Trusler’s volume
22 ROBERT CAWDREY, A TABLE ALPHABETICALL (1604). The only surviving copy of the first printing of this book is owned by the Bodleian Library at Oxford University. Oxford University Press has published a modern scholarly edition of Cawdrey’s dictionary with an introduction by John Simpson, Chief Editor of the Oxford English Dictionary. See THE FIRST ENGLISH DICTIONARY 1604: ROBERT CAWDREY’S A TABLE ALPHABETICAL (2007) (introduction by John Simpson). For additional background, see DE WITT T. STARNES & GERTRUDE E. NOYES, THE ENGLISH DICTIONARY FROM CAWDREY TO JOHNSON 1604-1755 (2nd ed. 1999) (introduction by Gabriele Stein); REBECCA SHAPIRO, FIXING BABEL: AN HISTORICAL ANTHOLOGY OF APPLIED ENGLISH LEXICOGRAPHY (2016) (introduction by Jack Lynch).
23 NOAH WEBSTER, A COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE (1806). For discussion of Webster’s contributions to English lexicography, see DAVID MICKLETHWAIT, NOAH WEBSTER AND THE AMERICAN DICTIONARY (2005). For support of the proposition asserted in the text, see Table 1: Definitions of ‘‘Emolument’’ in English Dictionaries, 1604-1806, infra at A-2 to A-4 (henceforth ‘‘Table 1’’).
24 See Figure 1: Statistical and Longitudinal Analyses of Lexical Definitions, 1604-1806, infra at A-5 (henceforth ‘‘Figure 1’’). See also Table 1, infra at A-2 to A-4.
25 See Table 1, infra at A-2 to A-4; Figure 1, infra at A-5. 26 Compare DOJ Brief, supra note 1, at 28, 30 (defining ‘‘emolument’’ as ‘‘profit arising from profit or employ’’ and attributing that definition to BARCLAY) with Appendix A, infra at A-3, A5 (documenting that BARCLAY’S full definition of ‘‘emolument’’ is ‘‘profit arising from profit or employ; gain or advantage’’) (emphasis added). In addition to this definition, Barclay also includes an explanation of how ‘‘emolument’’ differs from synonyms such as ‘‘profit’’ and ‘‘lucre’’ that appears to have been copied from Trusler without attribution. Compare BARCLAY, infra at A-8 with TRUSLER, infra at A-122. The only other dictionaries from 1604 to 1806 that lend support to DOJ’s definition of ‘‘emolument’’ also include ‘‘gain, or advantage’’ in their definitions. See Appendix A, infra at A-3 and A-8 (recording definitions in WILLIAM RIDER, A NEW UNIVERSAL ENGLISH DICTIONARY (1st ed. 1759) and Daniel Fenning, The Royal English Dictionary) (5th ed. 1775)). Except for minor differences in punctuation, the definitions given by Barclay, Rider, and Fenning are identical, suggesting that Rider (1759) was probably the first English lexicographer to use this definition and that Barclay copied his definition directly from either Rider or Fenning.
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THE DEFINITION OF “EMOLUMENT” IN ENGLISH LANGUAGE AND LEGAL DICTIONARIES, 1523-1806 9
is not a standard dictionary at all, but rather a thesaurus, which presumes that “gain,” “profit,” “lucre,” and “emolument” are synonyms, albeit words with subtly different connotations.27 Moreover, Trusler’s account of these words was copied directly from a French thesaurus, Abbe Girard’s Synonymes François.28 His odd volume has long been viewed skeptically by scholars because “this book, including its preface, is for the most part an acknowledged translation”29 of Girard’s French text and because it “lacked the integrity of a work originally conceived with the problems of the English language in mind.”30 In short, Trusler’s explanation of “emolument” was not even reliably grounded in an investigation of the English lexicon, let alone its “common usage.”31
The suggestion that “emolument” was a legal term of art at the founding, with a sharply circumscribed “office-and-employment-specific”32 meaning, is also inconsistent with the historical record.33 A large quantity of evidence already
27 See infra at A-122 to A-129. 28 ABBÉ GIRARD, SYNONYMES FRANÇOIS, LEURS DIFFERENTES SIGNIFICATIONS; ET LE CHOIX QU’IL EN FAUT FAIRE POUR PARLER AVEC JUSTESSE (1748). See infra at A-122 to A-124. 29 SHAPIRO, FIXING BABEL, supra note 22, at 280 (quoting Gertrude E. Noyes, The Beginnings of the Study of Synonyms in England, 66 PMLA 951, 954 (1951)). 30 Id. 31 DOJ Brief, supra note 1, at 28. 32 Id. at 32. 33 Although DOJ does not clarify whether it thinks that ‘‘emolument’’ was a legal term of art at the founding, President-Elect Trump’s lawyers at Morgan, Lewis & Bockius did rely on this claim in their white paper on presidential conflicts of interest, which they circulated in connection with his pre-inaugural press conference. Moreover, they made this historical argument in the course of defending the very same ‘‘office-and-employment-specific’’ meaning of ‘‘emolument’’ to which DOJ subscribes in its brief. See Sheri Dillon, Fred F. Fielding, Allyson N. Ho, Michael E. Kenneally, William F. Nelson & Judd Stone, Conflicts of Interest and the President, Morgan, Lewis & Bockius White Paper, at 4 (January 11, 2017) (‘‘[A]n emolument was widely understood at the framing of the Constitution to mean any compensation or privilege associated with an office----then, as today, an ‘‘emolument’’ in legal usage was a payment or other benefit received as a consequence of discharging the duties of an office’’); id. (observing that the Supreme Court ‘‘explained that ‘the term emoluments . . . embrac[es] every species of compensation or pecuniary profit derived from a discharge of the duties of [an] office’’’ and noting that ‘‘[o]ther legal experts early in the Nation’s history used the word the same way’’) (quoting Hoyt, supra note 5); id. at 5 (discussing the ‘‘common legal use at the Founding’’). Other informed observers have also made similar claims. See, e.g., Trevor Burrus, Sleep Well, President Trump----There are No Emoluments Under the Bad, The Hill (June 16, 2017) (‘‘Unless we believe that the Framers intended to prohibit any presidential secondary source of income that could, even incidentally, do business with a foreign government or official, then clearly ‘‘emolument’’ is a term of art that covers specific types of payments and gifts’’). It is unclear to me whether Professor Natelson assumes that the definition of ‘‘emolument’’ he ultimately endorses (‘‘all compensation with financial value received by reason of public office, including salary and fringe benefits’’) was a legal term of art, but his article could be read to imply this. See Robert G. Natelson, The Original Meaning of ‘‘Emoluments’’ in the Constitution, 52 GA. L. REV. __, at 57 (forthcoming). Finally, Professor Tillman has submitted an amicus brief with an originalist orientation in CREW et al., v. Trump which also endorses an ‘‘office-and-employment-specific’’ definition. See Brief for Scholar Seth Barrett Tillman as Amicus Curaie in Support of Defendant, CREW et al., v Trump, Case 1:17-cv-00458-RA Document 37-1 (Filed 06/16/17) (henceforth ‘‘Tillman Amicus Brief’’),
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available and easily searchable in the public domain suggests that the founders used
the word “emolument” in wide variety of contexts, including private commercial transactions.34 This Article adds to that emerging historical consensus by
documenting that none of the most prominent common law dictionaries published from 1523 to 1792 even includes “emolument” in its list of defined terms.35 In fact,
the primary reason for which this term is used in these dictionaries is to define other, less familiar words and concepts.36 Together with the fact that none of the major abridgments appear to define or explain “emolument” either,37 and that Blackstone
and other influential writers of the period frequently used the word in comparably diverse contexts, including private business settings,38 these findings reinforce the
conclusion that “emolument” was not a legal term of art at the founding, which
referred only to specific types of payments or benefits associated with discharging the duties of a government office.39

at 5 (‘‘To put it in its simplest terms, an ‘emolument’ is the lawfully authorized compensation that flows from holding an office or employment’’); id. (‘‘Emoluments should be understood as the compensation which is to be fixed by law by the body that creates the office or position under discussion, or by the body charged with fixing the office’s or position’s regular compensation’’).
34 See, e.g., John Mikhail, A Note on the Original Meaning of ‘‘Emolument,’’ BALKINIZATION (January 18, 2017).
35 See Table 3: Definitions of ‘‘Emolument’’ in Legal Dictionaries, infra at A-91. 36 See, e.g., THOMAS BLOUNT, NOMO-LEXICON (2d ed. 1691), infra at A-107 (characterizing ‘‘Maritima Angliae’’ as ‘‘the Emolument arising to the King from the [sea]’’); GILES JACOB, A NEW LAW DICTIONARY (1st ed. 1729), infra at A-111 (same); TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW DICTIONARY (1st ed. 1764), infra at 115 (same). See also CUNNINGHAM, infra at A-113 (using ‘‘emolument’’ to define ‘‘Apportum’’); RICHARD BURN, A NEW LAW DICTIONARY (1st ed. 1792), infra at A-120 (using ‘‘emoluments’’ to explain ‘‘Isle of Man’’). Giles Jacob’s influential Law Dictionary also includes a ‘‘Form of a Release and Conveyance of Lands’’ in which ‘‘A.B.’’ conveys to ‘‘C.D.’’ a property together with ‘‘all . . . Easements, Profits, Commodities, Advantages, Emoluments, and Hereditaments whatsoever. ’’ JACOB, infra at A-110 (emphasis added). See generally Table 3: Other Uses of ‘‘Emolument’’ in Legal Dictionaries, infra at A-92; Transcript of Legal Dictionary Definitions and Uses, 1523-1792, infra at A-93. 37 Although this Article focuses on definitions of ‘‘emolument,’’ this should not be taken to imply that dictionaries are the only or best source for understanding how concepts were understood during the founding era. Other sources, such as case reports, abridgments, treatises, and statutes, may be at least as relevant, if not more so. A preliminary review by Simon Stern suggests that ‘‘emolument’’ does not appear in any of the major abridgments from the sixteenth century onward, such as those by Fitzherbert, Brooke, Rolle, Bacon, and Viner. If this is correct, then it lends further support to the conclusion that lawyers did not think that the term ‘‘emolument’’ required any special explanation. I am indebted to Simon Stern for these observations and findings. 38 See, e.g., John Mikhail, ‘‘Emolument’’ in Blackstone’s Commentaries, BALKINIZATION (May 28, 2017); Jed Shugerman, Mikhail’s Blackstone Breakthrough: Emoluments Meant Private Benefits, TAKE CARE BLOG (May 31, 2017). The evidence to which these blog posts refer is just the tip of the iceberg. There are many other comparable illustrations in the legal, political, and economic literature of the period. See, e.g., infra notes 41-46 and accompanying text. 39 Unlike the legal dictionaries investigated here, modern law dictionaries do often define ‘‘emolument’’ in terms of office- or employment-related compensation. See, e.g., DOJ Brief, supra note 1 at 30, n.26 (quoting the 2014 edition of Black’s Law Dictionary). See also, e.g., BLACK’S LAW DICTIONARY 542 (17th ed. 1999) (Bryan A. Garner, Ed.) (defining ‘‘emolument’’ as ‘‘Any advantage, profit, or gain received as a result of one’s employment or one’s holding of office’’); BLACK’S LAW DICTIONARY 616 (4th ed. 1951) (Henry Campbell Black, ed.) (defining
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Because the fact that “emolument” was frequently used in private business settings is not widely appreciated and has been vigorously denied,40 this point is worth elaborating at greater length. For present purposes, two illustrations should suffice. With the possible exception of Hugo Grotius, no early modern writer on the law of nations was more influential than Samuel Pufendorf. His most significant work, De Jure Naturae et Gentium (On the Law of Nature and of Nations), was published in Latin in 1672 and soon translated into every major European language. The first English translation was made by Basil Kennet in 1703, with successive editions appearing in 1710, 1717, 1729, and 1749. The founders were intimately familiar with Pufendorf’s masterpiece and often quoted Kennet’s translation; for instance, George Wythe did so in his argument in Bolling v. Bolling; John Adams did so in his Novanglus essays; James Wilson did so in his Law Lectures; and Alexander Hamilton did so in his Pacificus essays.41 In Kennet’s translation, the word “emolument” occurs twice, once in Book V, Chapter V (“Of Chargeable Contracts in particular; and, First, of Bartering, Buying, and Selling”) and once in Book V, Chapter VII (“Of the Loan of a Consumable Commodity”). Both occasions involve private market transactions:
“What they call Lex Commissoria makes void the Bargain, if the Price be not paid by such a Day. And, in this Case, either the Seller may immediately deliver the Goods, and, in Default of the Payment, claim them again with the Emolument, or else the Goods maybe kept in Possession, till the Payment be actually be made; which last seems to be the safest Way, for generally this Clause is designed in Favour of the Seller, to save him from being put to any Trouble in the quest of his Money….”42

‘‘emolument’’ principally as ‘‘The profit arising from office or employment; that which is received

as a compensation for services, or which is annexed to the possession of office as salary, fees,

and perquisites; advantage; gain, public or private’’). As this Article documents, however, the

same was not true when the Constitution was framed and ratified.

40 See, e.g., Tillman Amicus Brief, supra note 33, at 2 (‘‘Financial gain arising from private

business transactions are not emoluments’’). See also Seth Barrett Tillman, Business Transactions

and President Trump’s ‘‘Emoluments’’ Problem, 40 HARV. J. L. & PUB. POL. 759 (2017).

41 See BERNARD SCHWARTZ, THOMAS JEFFERSON AND BOLLING V. BOLLING: LAW AND THE

LEGAL PROFESSION IN PRE-REVOLUTIONARY AMERICA 417-418 (1997) (with Barbara Wilcie Kern

& R.B. Bernstein) (reproducing Wythe’s argument in Bolling, which in turn quotes Kennet’s

edition of Pufendorf’s Law of Nature and Nations); ‘‘VI. To the Inhabitants of the Colony of

Massachusetts-Bay, 27 February 1775, ’’ FOUNDERS ONLINE, National Archives, last modified

June 29, 2017, http://founders.archives.gov/documents/Adams/06-02-02-0072-0007. [Original

source: The Adams Papers, Papers of John Adams, vol. 2, December 1773 -- April 1775, ed. Robert

J. Taylor. Cambridge, MA: Harvard University Press, 1977, pp. 288--307.] (quoting Kennet’s

translation of Pufendorf); COLLECTED WORKS OF JAMES WILSON 478-479 (2007) (Kermit L. Hall

& Mark David Hall, eds.) (same); ‘‘Pacificus No. III, [6 July 1793], ’’ FOUNDERS

ONLINE,

National

Archives,

last

modified

June

29,

2017,

http://founders.archives.gov/documents/Hamilton/01-15-02-0055. [Original source: The Papers

of Alexander Hamilton, vol. 15, June 1793 -- January 1794, ed. Harold C. Syrett. New York:

Columbia University Press, 1969, pp. 65--69.] (same).

42 OF THE LAW OF NATURE AND NATIONS 259-260 (3d. ed. 1717) (Translated by Basil Kennet)

(original emphases deleted, spelling modernized, and emphasis on ‘‘emolument’’ added).

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“A Man was Guilty of Usury properly so called, not only when he received back a Consumable Commodity with Increase, but if by reason of such a Loan, he lived in another’s House Gratis till he was paid; or gave less Rent for it, than otherwise he would have done; or if he received any Emolument from a Pawn left with him upon Account of the Debt.”43
Likewise, many of the founders were well-acquainted with Adam Smith and his economic theories. For example, Benjamin Franklin requested a copy of An Inquiry into the Nature and Causes of the Wealth of Nations shortly after it was published in 1776; James Madison included Smith’s book in his 1783 Report on Books for Congress; Robert Morris reportedly gave out copies of The Wealth of Nations to members of Congress in the 1780s; and James Wilson quoted Smith in defense of the Bank of North America in 1785.44 In The Wealth of Nations, “emolument” also occurs twice, once in Book I, Chapter VII (“Of the Natural and Market Price of Commodities”) and once in Book IV, Chapter III (“Of the Extraordinary Restraints upon the Importation of Goods of Almost All Kinds from Those Countries with which the Balance is Supposed to be Disadvantageous”). Once again, both occasions involve private market transactions:
A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures. The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.45
The city of Amsterdam derives a considerable revenue from the bank…The bank is supposed, too, to make a considerable profit by the sale of the foreign coin or bullion which sometimes falls to it by the expiring of receipts, and which is always kept till it can be sold with advantage. It makes a profit likewise by

43 Id. at 271.

44 See ‘‘To Benjamin Franklin from Benjamin Vaughan, 27 January 1777, ’’ Founders

Online,

National

Archives,

last

modified

June

29,

2017,

http://founders.archives.gov/documents/Franklin/01-23-02-0153. [Original source: The Papers of

Benjamin Franklin, vol. 23, October 27, 1776, through April 30, 1777, ed. William B. Willcox.

New Haven and London: Yale University Press, 1983, pp. 241--243.] (listing ‘‘Smith’s Wealth of

Nations’’ among the books sent to Franklin); DAVID LEFER, THE FOUNDING CONSERVATIVES:

HOW A GROUP OF UNSUNG HEROES SAVED THE AMERICAN REVOLUTION 245-246 (2013) (relating

that Morris ‘‘found Smith’s thought so persuasive, in fact, that he gave out copies to members of

Congress’’); ‘‘Report on Books for Congress, [23 January] 1783,’’ Founders Online, National

Archives, last modified June 29, 2017, http://founders.archives.gov/documents/Madison/01-06-

02-0031. [Original source: The Papers of James Madison, vol. 6, 1 January 1783 -- 30 April 1783,

ed. William T. Hutchinson and William M. E. Rachal. Chicago: The University of Chicago Press,

1969, pp. 62--115.] (including ‘‘Smith on the wealth of Nations’’ in his list of books); James

Wilson, Considerations on the Bank of North America, in COLLECTED WORKS OF JAMES WILSON,

supra at 60-79, 73-74 (quoting Smith’s remarks on banking).

45 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS

26, 208 (1952) (Robert Maynard Hutchins, Ed.) (emphasis added).

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THE DEFINITION OF “EMOLUMENT” IN ENGLISH LANGUAGE AND LEGAL DICTIONARIES, 1523-1806 13
selling bank money at five per cent agio, and buying it in at four. These different emoluments amount to a good deal more than what is necessary for paying the salaries of officers, and defraying the expense of management.46
In the face of illustrations like these, which occur frequently in eighteenth-century literature and reinforce what is apparent from a cursory review of the founders’ own writings, it seems difficult to understand why some respected scholars continue to insist that the original meaning of “emolument” did not encompass financial gains arising from private business transactions.
II. THE FOUNDERS’ DICTIONARIES
Even if one sets aside the foregoing problems, the government’s dictionarybased argument in its motion to dismiss is flawed in another, more fundamental respect. Little or no evidence indicates that the two historical dictionaries—Barclay (1774) and Trusler (1766)—on which DOJ relies in its brief to defend its “officeand-employment-specific” definition of “emolument” were owned, possessed, or used by the founders, let alone had any impact on them or on the American people who debated and ratified the Constitution. For example, neither of these dictionaries is mentioned in the more than 178,000 searchable documents in the Founders Online database, which makes publicly available the papers of the six most prominent founders. Nor do these volumes appear in other pertinent databases, such as Journals of the Continental Congress,47 Letters of Delegates to Congress,48 Farrand’s Records,49 Elliot’s Debates,50 or the Documentary History of the Ratification of the Constitution.51 Finally, their role in constitutional adjudication appears to be negligible.52
46 Id. 47 See JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789 (34 volumes, Washington, D.C., 1904-37) (Worthington C. Ford et al. , Eds.). 48 See LETTERS OF DELEGATES TO CONGRESS, 1774-1789. (25 volumes, Washington, D.C.: Library of Congress, 1976-2000) (Paul H. Smith et al., Eds.) 49 See MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (3 volumes, 1911). 50 See THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION IN 1787 (5 volumes, 1836) (Jonathan Elliot, Ed.). 51 See THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION (28 volumes, Madison, Wisconsin, 1976--__) (Merrill Jensen et al., Eds.). 52 See Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 GEO. WASH. L. REV. 358, 384 n. 143 (2014) (indicating that Barclay has been cited once by the Supreme Court, in a dissenting opinion by Justice Thomas). Note that the generalizations in the text also apply to William Rider’s New Universal English Dictionary (1759) and Daniel Fenning’s Royal English Dictionary (1761), the only other founding-era dictionaries which even weakly support DOJ’s arguments. Little or no mention of either of these volumes can be found in any of the foregoing databases. One possible exception concerns an 1820 letter from Edmund Kelly to James Madison. In that letter, however, Kelly apparently refers to Fenning’s ‘‘Spelling Book’’ rather than his dictionary. See ‘‘To James
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The contrast with the historical dictionaries DOJ ignores or dismisses in its brief could not be sharper. Significantly, many of the founders actually owned and used these dictionaries. Moreover, the US Supreme Court has often relied on these dictionaries to interpret the original public meaning of constitutional terms. Here are five noteworthy illustrations:
a. Johnson
Samuel Johnson’s Dictionary of the English Language53 was probably the most famous and important eighteenth century dictionary.54 Many of the founders owned copies of it or referred to it in their correspondence and other papers. Writing as “A Friend to America,” Alexander Hamilton used Johnson’s Dictionary to take verbal swipes at Samuel Seabury in A Full Vindication55 and The Farmer Refuted.56 Benjamin Franklin eagerly ordered several copies of Johnson’s Dictionary when it became available in 1755.57 James Madison included Johnson’s Dictionary in his Report on Books for Congress in 1783,58 and Thomas Jefferson did likewise in his List of Books for the Library of Congress in 1802.59 The Supreme Court has cited Johnson’s Dictionary on numerous occasions, including Morrison v. Olson,60 District of Columbia v. Heller,61 and Citizens United.62

Madison from Edmond Kelly, 26 September 1820,’’ Note 15, FOUNDERS ONLINE, National

Archives, last modified June 29, 2017, http://founders.archives.gov/documents/Madison/04-02-

02-0111.

53 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755).

54 See, e. g. , JOHN ALEGO, THE ORIGINS AND DEVELOPMENT OF THE ENGLISH LANGUAGE 158

(2009) (‘‘The publication of Johnson’s Dictionary was certainly the most important linguistic event

of the eighteenth century’’)

55 See Alexander Hamilton, ‘‘A Full Vindication of the Measures of the Congress, &c., [15

December] 1774,’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017,

http: / / founders. archives. gov/ documents/ Hamilton/ 01-01-02-0054.

56 See Alexander Hamilton, ‘‘The Farmer Refuted, &c., [23 February] 1775, ’’ FOUNDERS

ONLINE, National Archives, last modified March 30, 2017,

http: / / founders. archives. gov/ documents/ Hamilton/ 01-01-02-0057.

57 ‘‘From Benjamin Franklin to Peter Collinson, 26 June 1755, ’’ FOUNDERS ONLINE,

National

Archives,

last

modified

March

30,

2017,

http: / / founders. archives. gov/ documents/ Franklin/ 01-06-02-0045.

58 ‘‘Report on Books for Congress, [23 January] 1783, ’’ Founders Online, National

Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Madison/01-

06-02-0031.

59 The Papers of Thomas Jefferson, vol. 37, 4 March--30 June 1802, ed. Barbara B. Oberg.

Princeton: Princeton University Press, 2010, pp. 229--233.

60 Morrison v. Olson, 487 U.S. 654, 719 (1988) (using Johnson to interpret the original

meaning of ‘‘inferior’’).

61 District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (using Johnson to interpret the

original meaning of ‘‘arms’’).

62 Citizens United v. FEC, 558 U.S. 310, 428 n.55 (2010) (using Johnson to interpret the

original meaning of ‘‘speech’’).

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THE DEFINITION OF “EMOLUMENT” IN ENGLISH LANGUAGE AND LEGAL DICTIONARIES, 1523-1806 15
In the first edition of his Dictionary and every subsequent edition thus far consulted, Johnson defines “emolument” as “Profit; advantage.”63
b. Bailey
Another lexicographer well-known to the founders was Nathan Bailey. One scholar characterizes Bailey’s commercial success as “staggering,”64 and another describes his New Universal Etymological Dictionary as “the supreme popular dictionary of the 18th century, holding a position analogous to that of Webster in the 19th century.”65 Benjamin Franklin advertised Bailey’s New Dictionary for sale on multiple occasions.66 John Adams,67 Thomas Jefferson,68 and other founders also owned copies. When Franklin and his associates founded the Library Company of Philadelphia in 1731, their first book purchase included Bailey’s Dictionary Britannicum.69 The Supreme Court has cited Bailey in cases such as US v. Lopez,70 INS v. St. Cyr,71 Bond v. United States,72 and Arizona State Legislature v. Arizona Redistricting Commission.73
In his New Universal Etymological Dictionary, Bailey defines “emolument” as “Advantage, Profit.”74 In his Dictionary Britanicum, he defines “emolument” as
63 For transcripts and images of the eighth edition of Johnson’s Dictionary (1783), see infra at A-2, A-7, A-44.
64 Melissa Patterson, The Creators of Information in Eighteenth-Century Britain [page] (2015) (unpublished Ph.D. dissertation, University of Ontario) (on file with the University of Ontario libraries).
65 Percy W. Long, English Dictionaries before Webster, 4 Papers (Bibliographical Society of America) 25, 31 (1909).
66 See, e.g., ‘‘Extracts from the Gazette, 1741, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Franklin/01-02-02-0079; ‘‘Extracts from the Gazette, 1744, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Franklin/01-02-02-0117.
67 See, e.g., ‘‘[April 1761],’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Adams/01-01-02-0006-0004.
68 See, e.g., ‘‘From Thomas Jefferson to James Eastburn, 2 April 1819, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Jefferson/98-01-02-0293; ‘‘From Thomas Jefferson to John Adams, 15 August 1820,’’ Founders Online, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Jefferson/98-01-02-1458.
69 See LIBRARY COMPANY OF PHILADELPHIA, THE CHARTER, LAWS, AND CATALOGUE OF BOOKS, OF THE LIBRARY COMPANY OF PHILADELPHIA 106 (1770).
70 United States v. Lopez, 514 U.S. 549, 586 (1995) (used Bailey to interpret the original meaning of ‘‘commerce’’).
71 INS v. St. Cyr, 533 U.S. 289, 337(2001) (using Baily to interpret the original meaning of ‘‘suspend’’).
72 Bond v. United States, 134 S. Ct. 2077, 2104 (2014) (using Bailey to interpret the original meaning of ‘‘treaty’’).
73 Ariz. State Legis. v. Ariz. Indep. Redistricting Comm' n, 135 S. Ct. 2652, 2671 (2015) (using Bailey to interpret the original meaning of ‘‘legislature’’).
74 NATHAN BAILEY, A UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (1721), infra at A26.
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“Profit gotten by labour and cost.”75 Finally, Bailey and Scott’s New Etymological Dictionary defines “emolument” as “Profit.”76
c. Dyche & Pardon

Thomas Dyche & William Pardon’s A New General English Dictionary was both the first English dictionary to include grammar and the first to be marketed to female as well as male readers.77 This highly popular book went through eighteen editions by 1794.78 Benjamin Franklin advertised the book for sale on many occasions, including 1730,79 1741,80 and 1744.81 Franklin ordered seventy-two copies of Dyche & Pardon from his bookseller in September 1746,82 followed by a second order in January 1747,83 implying he may have sold up to one copy per day
over this period. John Adams mentioned Dyche & Pardon’s Dictionary in a diary entry on board a ship in 1778.84 The Supreme Court has cited Dyche & Pardon in cases such as NFIB v. Sebelius,85 Zivotofsky v. Kerry,86 and, most recently, Manuel v. Joliet.87
In their New English Dictionary, Dyche & Pardon define “emolument” as “Benefit, advantage, profit.”88

75 NATHAN BAILEY, DICTIONARIUM BRITANICUM (1730) (A-28). 76 NATHAN BAILEY & JOSEPH SCOTT, A NEW ETYMOLOGICAL DICTIONARY (1755) (A-46). 77 MERJA KYOTO, THE CAMBRIDGE HANDBOOK OF ENGLISH HISTORICAL LINGUISTICS 100105 (2016). 78 See 2 THE NEW CAMBRIDGE BIBLIOGRAPHY OF ENGLISH LITERATURE 1968 (George Watson et al. eds., 1971). 79 See ‘‘Extracts from the Gazette, 1730,’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Franklin/01-01-02-0057. 80 See ‘‘Extracts from the Gazette, 1741, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Franklin/01-02-02-0079. 81 See ‘‘Extracts from the Gazette, 1744,’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Franklin/01-02-02-0117. 82 See ‘‘From Benjamin Franklin to William Strahan, 25 September 1746,’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http: / / founders. archives. gov/ documents/ Franklin/ 01-03-02-0038. 83 See ‘‘From Benjamin Franklin to William Strahan, 4 January 1747, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http: / / founders. archives. gov/ documents/ Franklin/ 01-03-02-0047. 84 See ‘‘[February 1778], ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Adams/01-02-02-0008-0001. 85 Nat' l Fed' n of Indep. Bus. v. Sebelius, 567 U.S. 519, 649 (2012) (using Dyche & Pardon to interpret the original meaning of ‘‘regulate’’). 86 Zivotofsky v. Kerry, 135 S. Ct. 2076, 2104 (2015) (using Dyche & Pardon to interpret the original meaning of ‘‘naturalization’’). 87 Manuel v. City of Joliet, 137 S. Ct. 911, 927 (2017) (using Dyche & Pardon to interpret the original meaning of ‘‘seizure’’). 88 THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH DICTIONARY 1735 (A36).
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d. Ash
The influence of John Ash’s The New Complete Dictionary of the English Language on the founders is less clear. Still, his dictionary is often included in lists of founding era dictionaries.89 Ash is probably best known today for including vulgar words in his dictionary,90 a decision for which he has been praised.91 His grammar book was purchased by Alexander Hamilton in 1796,92 and George Wythe also owned a copy, which he bequeathed to Thomas Jefferson.93 The Supreme Court has cited Ash’s dictionary in cases such as NFIB v. Sebelius94 and Burstyn v. Wilson.95
In his New General English Dictionary, Ash defines “emolument” as “An advantage, a profit.”96
e. Entick
Perhaps because it was pocket-sized, John Entick’s New Spelling Dictionary was a primary means by which Americans communicated with one another in code during the founding era. From 1777 to 1779, the Lee brothers used a cipher based on Entick’s dictionary for this purpose.97 John Jay proposed a cipher based on Entick’s dictionary to Robert Morris in 1780,98 and John Adams used Entick in a similar fashion in 1781.99 In a 1781 letter to George Washington, James Lovell describes how British army officers did likewise.100 Philip Schuyler devised a

89 See, e. g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION

OF LEGAL TEXTS 419 (2012); Maggs, ‘‘A Concise Guide,’’ supra note 52, at 382-383.

90 See Jesse Sheidlower, ‘‘Can a Woman ‘‘Prong’’ a Man?’’ SLATE, (October 2009),

http: / / www. slate. com/ articles/ life/ the_good_word/ 2009/ 10/ can_a_woman_prong_a_man. html.

91 For one example, see Joseph Crabtree, ‘‘The Crabtree Foundation 40th Oration’’ (2014),

http: / / www. crabtreemelbourne. org/ Oration2014. pdf.

92 See ‘‘Account with Archibald Drummond, 4 October 1796, ’’ FOUNDERS ONLINE,

National

Archives,

last

modified

March

30,

2017,

http: / / founders. archives. gov/ documents/ Hamilton/ 01-20-02-0224.

93 See ‘‘To Thomas Jefferson from George Jefferson, 22 July 1806, ’’ FOUNDERS ONLINE,

National

Archives,

last

modified

March

30,

2017,

http: / / founders. archives. gov/ documents/ Jefferson/ 99-01-02-4073.

94 NFIB v. Sebelius, supra note 50 (using Ash to interpret the original meaning of ‘‘regulate’’).

95 Joseph Burstyn v. Wilson, 343 U.S. 495, 537 (1952) (using Ash to interpret the historical

meaning of ‘‘sacrilege’’ and ‘‘blasphemy’’).

96 JOHN ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1775),

infra at A-71.

97 See Edmund C. Burnett, Ciphers of the Revolutionary Period, 22 AM. HIST. REV. 329, 330

(1909).

98 ‘‘To John Jay (Jun. 5, 1781)’’ collected in THE PAPERS OF ROBERT MORRIS 115 (Elmer J.

Ferguson ed. 1975).

99 ‘‘Enclosure: Key for a Code System, 8 September 1781, ’’ FOUNDERS ONLINE,

National Archives, last modified March 30, 2017,

http: / / founders. archives. gov/ documents/ Adams/ 06-11-02-0355-0002.

100 ‘‘To George Washington from James Lovell, 14 October 1781, ’’ FOUNDERS ONLINE,

National Archives, last modified March 30, 2017,

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cipher based on Entick’s dictionary and shared it with Rufus King and Alexander Hamilton in 1798.101 During the first Congress, John Adams and Roger Sherman debated the meaning of “Republic” in light of Entick’s definition of that term.102 While serving as President of the United States, Thomas Jefferson purchased a 1777 edition of Entick’s dictionary.103
Entick’s New Spelling Dictionary defines “emolument” as “Profit, advantage, benefit.”104
Rightly emphasizing that all dictionaries are not created equal, Justice Antonin Scalia and Bryan A. Garner recommend four of these founding era dictionaries— Johnson, Bailey, Dyche & Pardon, and Ash—as “the most useful and authoritative” English dictionaries from 1750-1800.105 Scalia and Garner do not include Entick in their list, but they arguably should have, in light of the fact that the founders frequently used Entick’s dictionary to communicate with another in cipher.106 In the present context, however, that issue seems largely beside the point, since DOJ’s research was guided neither by Scalia and Garner’s recommendations nor by Entick.107 All five of these dictionaries define “emolument” in the broad manner favoring the plaintiffs–“profit,” “gain,” “advantage,” or “benefit.” None of them gives any hint of an “office-and-employment-specific”108 definition.

III. OTHER HISTORICAL ARGUMENTS
In light the foregoing considerations, it seems clear that the impression DOJ creates in its brief by contrasting four historical definitions of “emolument”—two broad and two narrow—is highly misleading.109 So, too, is the government’s
http: / / founders. archives. gov/ documents/ Washington/ 99-01-02-07158. 101 ‘‘To Alexander Hamilton from Philip Schuyler, 11 June 1799, ’’ FOUNDERS ONLINE,
National Archives, last modified March 30, 2017, http: / / founders. archives. gov/ documents/ Hamilton/ 01-23-02-0174.
102 ‘‘To John Adams from Roger Sherman, 18 July 1789, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Adams/99-0202-0684.
103 ‘‘Memorandum Books, 1807, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Jefferson/02-02-02-0017.
104 JOHN ENTICK, THE NEW SPELLING DICTIONARY (1765), infra at A-61. 105 See SCALIA & BRYAN A. GARNER, supra note 89. 106 See Burnett, supra note 97. See also supra notes 97-101 and accompanying text. 107 The government does refer to one of these five dictionaries in its brief; however, in both the text and table of authorities it neglects to state its authors. See DOJ Brief, supra note 1 at xii, 30 (citing A New General English Dictionary without noting its author was Dyche & Pardon). Moreover, on both occasions it mischaracterizes the 1754 edition as the ‘‘18th ed.’’ when in fact it was the eighth edition. See id. at xii, 30. DOJ also fails to indicate the author of the second contra dictionary it cites, A Complete Dictionary of the English Language (2d. 1789). The careless indifference toward sources favoring the plaintiffs is striking. 108 Id. at 32. 109 See DOJ Brief at 29-31 (contrasting the ‘‘narrower’’ definitions of ‘‘emolument’’ given by
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argument that any doubt or ambiguity arising from these competing definitions should be resolved in favor of its preferred definition by means of the doctrine of noscitur a sociis.110 Furthermore, a close examination of the government’s other historical arguments reveals many of them also cannot withstand scrutiny:
x To support its preferred definition of “emolument,” DOJ cites Hoyt v. United States, a case in which the Supreme Court wrote that “the term emoluments . . . embrac[es] every species of compensation or pecuniary profit derived from a discharge of the duties of the office.”111 Hoyt was a statutory case, however, which required the Court to interpret an 1802 statute referring to “the annual emoluments of any collector of the customs.”112 The Court’s language makes perfect sense in that statutory context, but it has no constitutional implications. It certainly did not purport to circumscribe the scope of “emolument” for constitutional purposes.113
x DOJ asserts that because of “common usage in the founding era . . . the term ‘Emolument’ in the Emoluments Clauses should be interpreted to refer to a ‘profit arising from an office or employ.’”114 The paragraph that supposedly justifies this claim, however, contains only two examples of founding era usage: an 1802 statute and an address by President Washington.115 Neither is remotely sufficient to prove the point at issue—and they surely do not demonstrate any “common usage.”116 Like other members of his generation, moreover, Washington frequently used the word “emolument” in private commercial contexts, or to convey a broader meaning.117
Barclay and Trusler with two ‘‘broader’’ definitions given by ‘‘A New English Dictionary (18th ed. 1754)’’ and ‘‘A Complete Dictionary of the English Language (2d. 1789)’’).
110 Id. at 30-31. 111 Hoyt v. United States, 51 U.S. 109, 135 (1850) (emphasis added by DOJ). 112 2 Stat. at Large, 172, § 3 (April 30, 1802). 113 Jane Chong makes a similar point about Hoyt in her insightful commentary on DOJ’s brief. See Chong, supra note 21 (observing that Hoyt must be read ‘‘with an eye to [its] facts: [the case does] not assert that ‘emoluments’ must derive directly from discharge of duty; rather, the kind of emoluments at issue in [Hoyt] was the kind derived for discharge of duty’’). 114 Id. at 28 (quoting BARCLAY, supra note 9). 115 Id. at 28. 116 At most, the two examples weakly support the claim that ‘‘emolument’’ was often used to refer to government salaries, something no one disputes or denies----since of course such salaries are emoluments on any plausible definition. The point at issue is whether ‘‘emolument’’ was always used in this rigid manner; in other words, whether concepts such as ‘‘government salary’’ or ‘‘payment or other benefit received for discharging the duties of an office’’ were somehow built into the definition or semantic content of ‘‘emolument’’ at the time. Convincing evidence for the latter proposition is noticeably lacking. See Mikhail, supra note 34; John Mikhail, Other Uses of ‘‘Emolument’’ in The Federalist (and the Fallacy of Affirming the Consequent), BALKINIZATION (January 25, 2017). 117 See, e.g., ‘‘From George Washington to John Price Posey, 7 August 1782, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/99-01-02-09066 (criticizing Posey for ‘‘selling another Mans Negros for your own emolument’’) (emphasis added); ‘‘Proclamation on Intercourse with British Warships, 29 April 1776, ’’ FOUNDERS ONLINE, National Archives,
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x DOJ claims that the prohibition on receiving foreign emoluments in the Articles of Confederation “was prompted by”118 a series of events involving American diplomats Arthur Lee, Silas Deane, and Benjamin Franklin, which occurred in connection with their “successfully negotiating the Franco-American alliance treaty of 1778.”119 This causal claim is at odds with the fact that the prohibition on foreign emoluments in the Articles was initially drafted by John Dickinson at least two years before the events in question.120
last modified March 30, 2017, http://founders.archives.gov/documents/Washington/03-04-020132 (referring to ‘‘wicked Persons, preferring their own, present private Emolument to their Country’s Weal’’) (emphasis added); ‘‘Virginia Nonimportation Resolutions, 22 June 1770, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Jefferson/01-01-02-0032 (calling for a boycott of sellers of British and European goods who ‘‘have preferred their own private emolument’’ to ‘‘the dearest rights of the people of this colony’’) (emphasis added); ‘‘Washington’s Memoranda on Indian Affairs, 1789,’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/05-04-02-0333 (‘‘Every Navigable River throughout the Territory shall be deemed a highway and no obstruction shall be placed therein for the emolument of any person whatsoever’’) (emphasis added); ‘‘General Orders, 8 August 1775, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/03-01-02-0173 (referring to men who send others ‘‘to work upon their Farms, for their own private Emolument’’) (emphasis added); ‘‘General Orders, 5 June 1778,’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/03-15-02-0331 (observing that ‘‘nothing can justify the converting [of horses] as appears to have been intended to private Emolument, to the Injury of the Right Owner’’) (emphasis added); ‘‘General Orders, 22 April 1779, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/03-20-02-0138 (‘‘he has purchased the rations of rum from the Artificers and sold them again for his own emolument’’) (emphasis added); ‘‘General Orders, 16 October 1780, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/99-01-02-03588 (referring to ‘‘selling a quantity of Rum . . . at an advanced price, the Profits of which it is presumed were then intended for his own private emolument’’) (emphasis added); ‘‘From George Washington to Colonel Josias Carvil Hall, 3 April 1778, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/03-14-02-0365 (referring to ‘‘Officers seduced by views of private interest and emolument to abandon the cause of their Country’’) (emphasis added); ‘‘From George Washington to Anthony Whitting, 2 June 1793,’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/05-13-02-0005 (‘‘for these things, if not lost or stolen, are frequently sold for their own emolument’’) (emphasis added); ‘‘From George Washington to Gilbert Simpson, 13 February 1784,’’ Founders Online, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/04-01-02-0084 (observing that ‘‘something more than your own emolument was intended by the partnership’’) (emphasis added); ‘‘From George Washington to Elias Boudinot, 17 June 1783, ’’ FOUNDERS ONLINE, National Archives, last modified March 30, 2017, http://founders.archives.gov/documents/Washington/99-01-02-11469 (referring to ‘‘the emoluments which might be derived from the Peltry Trade at our Factories’’) (emphasis added).
118 DOJ Brief at 33. 119 Id. at 34. See generally id. at 32-34. 120 See 5 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 547 (July 1776). The ‘‘Dickinson Draft’’ of the Articles of Confederation included a prohibition on foreign emoluments
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x DOJ points out that four of the nation’s first five presidents (Washington, Jefferson, Madison, and Monroe) continued to maintain active plantations while in office, and in the course of doing so at least two of them exported agricultural products to other countries.121 DOJ speculates that these activities might have included commercial transactions with a foreign state, but it provides no direct evidence that any such transactions occurred.
x DOJ also calls attention to the fact that President George Washington purchased several lots of public land in what became the District of Columbia from the federal government in 1793. DOJ assumes that this transaction was constitutional, and it infers on that basis that the plaintiffs’ broad definition of “emolument” must be mistaken.122 The government’s inference is highly debatable and arguably invalid. Unlike the Foreign Emoluments Clause, the Domestic Emoluments Clause appears to be concerned only with emoluments that the President receives “for his services” as President.123 Because any benefits Washington received from
in Article IV, which read in pertinent part:
No Colony or Colonies, without the Consent of the United States in Congress assembled, shall send any Embassy to or receive any Embassy from, or enter into any Treaty, Convention or Conference with the King or Kingdom of Great-Britain, or any foreign Prince or State; nor shall any Colony or Colonies, nor any Servant or Servants of the United States, or of any Colony or Colonies, accept of any Present, Emolument, Office, or Title of any Kind whatever, from the King or Kingdom of Great-Britain, or any foreign Prince or State; nor shall the United States assembled, or any Colony grant any Title of Nobility.
Id. To the best of my knowledge, this passage, written in Dickinson’s handwriting, constitutes the first occurrence of the language that eventually became the Foreign Emoluments Clause of the U.S. Constitution. Note that in Dickinson’s draft, the prohibition on accepting emoluments extended not only to all colonial and federal officials, but also to ‘‘any Colony or Colonies’’ themselves. This fact appears to be yet another indication that the original understanding of ‘‘emolument’’ was not limited to ‘‘office-and-employment-specific’’ payments or benefits. The Dickinson Draft was modified by a committee of the whole on August 20, 1776, whereupon this reference to ‘‘any Colony or Colonies’’ was dropped and language identical to that found in the Articles of Confederation was adopted. See id. at 675.
121 DOJ Brief, supra note 1, at 36-37 (noting that Washington ‘‘exported flour and cornmeal to ‘England, Portugal, and the island of Jamaica,’’’ and that Jefferson ‘‘exported his tobacco crop to Great Britain’’).
122 Id. at 38-39. 123 See, e.g., Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, at 54-55, University of Iowa Legal Studies Research Paper Number 2017-15, available at http://ssrn.com/abstract= 2902391 (March 2017); Grewal, supra note 21; Letter of Milton J. Socolar for Comptroller General of the United States to Senator George Mitchell, B-207467 (Comp. Gen.), 1983 WL 27823 (Jan. 18, 1983). See also THE FEDERALIST NO.73, at 493-494 (Alexander Hamilton) (Jacob E. Cooke, Ed.). If I understand Professor Grewal correctly, he assumes that the Domestic Emoluments Clause (DEC) should be interpreted to include a tacit repetition of the phrase ‘‘for his services’’ as a modification of the second occurrence of the verb ‘‘receive,’’ so that in effect the clause should be read like this:
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this purchase of public land were not received for his services as President, the Domestic Emoluments Clause was not violated by this transaction. The precise definition of “emolument” is immaterial to this analysis. On any definition, the constitutional outcome would be the same.
x Perhaps most remarkably, DOJ asserts that “[t]he history and purpose of the [Emoluments Clauses] is devoid of concern about private commercial business arrangements.”124 This assertion is false and inconsistent with the best explanation of the broad sweep of emoluments prohibitions adopted by American governments from 1776 to 1789, many of which were designed specifically to prevent corruption and restrain public officials from placing their private commercial interests over their public duties. Six prominent illustrations are the Virginia Declaration of Rights,125 the Constitution of Pennsylvania,126 the Articles of Confederation,127 the 1784 Consular

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive [for his Services] within that Period any other Emolument from the United States, or any of them.
This reading of the DEC seems plausible to me -- at least as plausible as one in which the second occurrence of ‘‘receive’’ is held to be entirely unmodified, or is construed very broadly, as if it read: ‘‘and he shall not receive [for any reason whatever] within that Period any other Emolument from the United States, or any of them. ’’ If the former and more focused reading is adopted, then the constitutional analysis of a Domestic Emoluments Clause violation in any given case may turn simply on whether the President received the emoluments in question ‘‘for his services’’ as President. In familiar cases such as President Washington’s purchase of land from the federal government, President Kennedy’s receipt of naval retirement pay, President Reagan’s receipt of California retirement benefits, and President Obama’s receipt of interest payments on US Treasury bonds, the answer is invariably no. In all of these cases, therefore, the definition of ‘‘emolument’’ can be as broad or as narrow as one likes, and the constitutional outcome would be the same -- because the payments or benefits at issue were not received by the president ‘‘for his services’’ as president. Note that the foregoing analysis implies that at least some of the specific allegations that have been made against President Trump’s for Domestic Emoluments Clause violations may not be valid legal claims. On the other hand, the analysis appears to explain and justify many of the historical examples that are thought to pose the most difficult challenges to the broad meaning of ‘‘emolument’’ presupposed by plaintiffs’ Foreign Emoluments Clause claims.
124 Id. at 34. 125 See Virginia Declaration of Rights (1776) (‘‘That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services….’’) (emphasis added). 126 See Constitution of Pennsylvania (1776) (‘‘That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; and not for the particular emolument or advantage of any single man, family, or set of men, who are a part only of that community’’) (emphasis added). 127 See Articles of Confederation (1781) (‘‘[N]or shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign State.’’) (emphasis added).
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Convention with France,128 the 1788 Consular Convention with France,129 and the 1789 Act to Establish the Treasury Department.130 DOJ neglects to discuss any of these landmarks in early American public law, opting instead to focus attention on less significant matters.
In short, DOJ’s fragile dictionary-based argument is symptomatic of a weak grasp of American constitutional history in general. The bulk of the government’s Rule 12(b)(6) motion to dismiss consists of an extended originalist argument that spans over twenty pages.131 The argument is remarkably flimsy, bearing many of the marks of “law office history” that make historians and sophisticated originalists wince.132 These deficiencies do not impugn originalism itself, of course, if for no
128 See Consular Convention between His Most Christian Majesty and the Thirteen United States of North America, in 4 THE DIPLOMATIC CORRESPONDENCE OF THE AMERICAN REVOLUTION 198-208, 199-200 (1829) (Jared Sparks, Ed.) (authorizing the consuls and vice consuls of each nation ‘‘to establish agents in the different ports and places of their departments’’ who ‘‘may be chosen among the merchants, either national or foreign, and furnished with a commission from one of the said consuls’’ and declaring that it shall be the business of these agents ‘‘to render to their respective merchants, navigators, and vessels, all possible service, and to inform the nearest consul or vice consul of the wants of the said merchants, navigators, and vessels . . . without the power to extract from the said merchants any duty or emolument whatever, under any pretext whatever’’) (emphasis added). Benjamin Franklin and Charles Gravier de Vergennes agreed to this provision and signed the convention on behalf of the United States and France on July 29, 1784.
129 See Convention Defining and Establishing the Functions and Privileges of Consuls and Vice Consuls between the United States and France, in 1 THE AMERICAN DIPLOMATIC CODE, EMBRACING A COLLECTION OF TREATIES AND CONVENTIONS BETWEEN THE UNITED STATES AND FOREIGN POWERS 70-82 (1834 (Jonathan Elliot, Ed.) (declaring that consular agents ‘‘shall confine themselves respectively to the rendering to their respective merchants, navigators, and vessels, all possible service . . . without power under any pretext whatever to exact from the said merchants any duty or emolument whatsoever’’) (emphasis added). The language of this provision is nearly identical to its 1784 counterpart, from which it clearly was derived. The convention itself, signed at Versailles by Thomas Jefferson and L.C. de Montmorin on November 14, 1788, was one of the first treaties ever submitted to the Senate of the United States.
130 See 1 Stat. 65 (1789-1799) (‘‘That no person appointed to any office instituted by this act, shall directly or indirectly be concerned or interested in carrying on the business of trade or commerce, or be owner in whole or in part of any sea-vessel, or purchase by himself, or another in trust for him, any public lands or other public property, or be concerned in the purchase or disposal of any public securities of any State, or of the United States, or take or apply to his own use, any emolument or gain for negotiating or transacting any business in the said department, other than what shall be allowed by law’’) (emphasis added).
131 See DOJ Brief, supra note 1 at 26-48. 132 For a series of thought-provoking essays on the vexed relationship between originalism and constitutional history, see Jonathan Gienapp, Constitutional Originalism and History, PROCESS: A BLOG FOR AMERICAN HISTORY (March 20, 2017); Randy Barnett, Challenging the Priesthood of Professional Historians, VOLOKH CONSPIRACY (March 28, 2017) (responding to Gienapp); Jonathan Gienapp, Knowing How vs. Knowing That: Navigating the Past, PROCESS: A BLOG FOR AMERICAN HISTORY (April 4, 2017) (replying to Barnett); Michael Ramsey, Gienapp on Barnett on Gienapp on Originalism, THE ORIGINALISM BLOG (April 5, 2017) (commenting on the exchange between Gienapp and Barnett); Lawrence B. Solum, Some Reflections on Gienapp and Ramsey on Constitutional Originalism, LEGAL THEORY BLOG (April 5, 2017) (commenting on Gienapp and Ramsey). See also, e.g., JACK BALKIN, LIVING ORIGINALISM (2012); ROBERT
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other reason than ab abusu ad usum non valet consequentia (“a conclusion about the use of a thing from its abuse is invalid”).133 They do suggest, however, that the
government’s historical arguments are inadequate and need more work, particularly
if originalism continues to play a central organizing role in its legal briefs.

IV. SOURCES, METHODS AND DOCUMENTATION
This section describes the primary sources, methods, and documentation used in this study, all of which are relatively simple and straightforward. Appendix A (“‘Emolument’ in English Language Dictionaries, 1604-1806”) consists of several documents. The first is a table (“Table 1: Definitions of ‘Emolument’ in English Dictionaries”) which lists the core components of every known English dictionary definition of “emolument” published between 1604 and 1806.134 The list of dictionaries used in compiling this table was generated by drawing upon several authoritative works of dictionary scholarship, including The English Dictionary from Cawdrey to Johnson, 1604-1755 by De Witt T. Starnes & Gertrude E. Noyes (new edition, with an introduction, chronological list of dictionaries, and select bibliography by Gabrielle Stein);135 English Dictionaries from 1604 Through 1900: The Warren N. and Suzanne B. Cordell Collection of Dictionaries by Robert K. O’Niell;136 and Catalog of Dictionaries, Word Books, and Philological Texts, 14401900 by David Vancil.137
The second document in Appendix A (“Figure 1: Statistical and Longitudinal Analyses of Lexical Definitions”) provides tabular and graphic representations of these findings, highlighting both the frequency with which specific words are used to define “emolument” and the fluctuation of these definiens over time.138 For the sake of comprehensiveness, a third document transcribes each component of the definitions excerpted in Table 1, including information on etymology, parts of speech, and other miscellany which were left out of that table, in order to keep it as simple and illuminating as possible.139 Finally, for the benefit of those readers who
W. BENNETT & LAWRENCE B. SOLUM, CONSTITUTIONAL ORIGINALISM: A DEBATE (2011); Mary Sarah Bilder, The Constitution Doesn’t Mean What You Think It Means, THE BOSTON GLOBE (April 2, 2017); Alison L. LaCroix, The Rooms Where It Happened, THE NEW RAMBLER (May 23, 2016); Richard Primus, Will Lin-Manuel Miranda Transform the Supreme Court? THE ATLANTIC (June 4, 2016); Jack Rakove, Tone Deaf to the Past: More Qualms About Public Meaning Originalism, 84 FORDHAM L. REV. 969 (2015); Lawrence B. Solum, Originalist Methodology, 84 U. CHI. L. REV. 269 (2017).
133 Cf. John Mikhail, Law, Science, and Morality: A Review of Richard Posner’s ‘‘The Problematics of Moral and Legal Theory, ’’ 54 STAN. L. REV. 1057, 1127 (2002).
134 See Table 1, supra note 23. 135 See STARNES & NOYES, supra note 22. 136 See ROBERT K. O’NIELL, ENGLISH DICTIONARIES FROM 1604 THROUGH 1900: THE WARREN N. AND SUZANNE B. CORDELL COLLECTION OF DICTIONARIES (1988). 137 See DAVID VANCIL, CATALOG OF DICTIONARIES, WORD BOOKS, AND PHILOLOGICAL TEXTS, 1440-1900 (1993). 138 See Figure 1, supra note 24 139 See Transcript of English Dictionary Definitions, 1604-1806, infra at A-6.
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would like to see the originals with their own eyes, Appendix A includes original images of each of these definitions, along with its corresponding title page.140
Appendix B (“‘Emolument’ in Legal Dictionaries, 1523-1792”) also contains multiple documents. The first is a corollary to Table 1 (“Table 2: Legal Dictionary Definitions of ‘Emolument’”), which documents the complete lack of entries for “emolument” in legal dictionaries published between 1523 and 1792.141 The list of dictionaries used in this table was generated on the basis of the Tarlton Law Library’s Law Dictionary Collection, part of the Jamail Center for Legal Research at the University of Texas.142
The second document in Appendix B is another table (“Table 3: Other Uses of ‘Emolument’ in Legal Dictionaries”),143 which records every instance in which “emolument” is used in legal dictionaries as part of the definition or explanation of another term.144 Once again, for the sake of comprehensiveness, a third document transcribes the definitions excerpted in Table 3.145 Finally, for the benefit of readers who might like to see the originals, Appendix B includes a complete set of images for each of these dictionaries, including the pages on which “emolument” would have occurred if it had been defined, the pages where it is used to define other terms, and the corresponding title pages of these volumes.146
Appendix C (“‘Emolument’ in Synonymy Dictionaries, 1748-1813”) is the last and the shortest of the four appendices to this Article. It provides background and context for evaluating the government’s reference to John Trusler on pages 29-30 of its brief. The first document in Appendix C is a table (Table 4: “Explanations of ‘Emolument’ in Synonymy Dictionaries”) which records usages of “emolument” in four synonymy dictionaries published from 1748 to 1813.147 This list was compiled by drawing on Professor Hullen’s scholarship on the history of Roget’s Thesaurus, which includes an extensive discussion of Trusler and other British lexicographers responsible for bringing the thesaurus to Great Britain.148 This table reveals that Trusler’s explanation of “emolument” is entirely derivative of an earlier
140 See Original Images, infra at A-10 to A-89. 141 See Table 2: Legal Dictionary Definitions of ‘‘Emolument,’’ infra at A-91. 142 The Law Dictionary Collection comprises over two hundred legal dictionaries from the Americas, the British Isles, and Western Europe, including many Roman Law, Common Law, and Civil Law volumes. See generally ‘‘About the Collection,’’ Law Dictionary Collection, University of Texas School of Law (tarlton.law.utexas.edu/law-dictionaries)). For the purposes of this study, I focused on the Tarlton Law Library’s catalogue of historical common law dictionaries, leaving an investigation of its Roman Law and Civil Law volumes for another occasion. I am grateful to Emily Kadens for pointing me toward these marvelous resources. 143 See Table 3, infra at A-91. 144 Id. 145 See Transcript of Legal Dictionary Definitions and Uses, 1604-1806, infra at A-93. 146 See Original Images, infra at A-95 to A-120. 147 See Table 4: Explanations of ‘Emolument’ in Synonymy Dictionaries, infra at A-122. 148 See WERNER HULLEN, A HISTORY OF ROGET’S THESAURUS: ORIGINS, DEVELOPMENT, AND DESIGN 199-276 (2003).
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volume by the French lexicographer, Abbé Girard, and therefore has little apparent grounding in English usage. The two other writers identified by Hullen in his discussion of Girard’s followers in Britain, Hester Lynch Piozzi and William Taylor, do not offer synonyms for “emolument” in their volumes. The significance of this absence is unclear; although it could be taken to imply the relative lack of influence Trusler had for later British lexicographers, more research is necessary before drawing any firm conclusions concerning this issue.149
The second document in Appendix C juxtaposes images from Trusler’s and Girard’s accounts of “emolument” side-by-side in order to reveal the formal and substantive similarities between them.150 Finally, the original images of these four synonymy dictionaries are reproduced.151 For the two volumes with an entry on “emolument” (Girard and Trusler), images of those pages are provided, along with images of the corresponding title page.152 For the two volumes without such an entry (Piozzi and Taylor), only an image of each volume’s title page is provided.153
For all of the foregoing inquiries, the dictionaries themselves were located using various online databases, some freely available and others requiring a library or other subscription. The primary databases used for this purpose were British History Online (BHO), Early English Books Online (EEBO), Eighteenth Century Collections Online (ECCO), Google Books, HathiTrust Digital Library, HAMNET (Folger Shakespeare Library Catalog), Hein Online, JSTOR, The Making of American Law, the Oxford English Dictionary, and the Washington Research Library Consortium, a partnership of nine university libraries located in the greater Washington, D.C. area.
Finally, in order to focus attention on founding era dictionaries and stay within manageable bounds, the study undertaken here was limited to English dictionaries published between 1604 and 1806 and legal dictionaries published between 1523 and 1792. As indicated, a follow up study of more recent dictionaries is currently underway, which seeks to understand how and why meanings of “emolument” may have changed over time. A key figure in this history appears to be Noah Webster,

149 Trusler’s volume is not included in several authoritative catalogues of English dictionaries, and his preface suggests that his primary objectives may be prescriptive rather than descriptive. See, e.g., O’NIELL, supra note 136 (excluding Trusler from his classification); STARNES & NOYES, supra note 22 (excluding Trusler from their list of English dictionaries); VANCIL, supra note 137 (same). See also TRUSLER, supra note 10, at 20-23 (explaining the aims and scope of his inquiry including ‘‘a thorough reform . . . [that] will go, a considerable way, towards the improvement of our tongue’’). By contrast, Trusler’s work plays a significant role in the origins of the modern English thesaurus. See, e.g., HULLEN, supra note 148, at 213----33 (discussing Trusler’s role in the evolution of the thesaurus in Great Britain); SHAPRIO, supra note 29, at 279281 (same); Noyes, supra note 29 (same). For all these reasons, Trusler’s book is not classified with the English language dictionaries in Appendix A, but rather with the English synonymy dictionaries in Appendix C. See generally infra at A-122 to A-129.
150 See side-by-side comparison of Girard (1748) and Trusler (1766), infra at A-123. 151 See Original Images, infra at A-123 to A-131. 152 See infra at A-123 to A-129. 153 See infra at A-130 to A-131.

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THE DEFINITION OF “EMOLUMENT” IN ENGLISH LANGUAGE AND LEGAL DICTIONARIES, 1523-1806 27
who defined “emolument” in the standard fashion in 1806, but whose more influential 1828 dictionary lists two definitions for “emolument,” the first of which involves office- or employment-related compensation.154 Webster thus represents a natural starting point for the next phase of research begun here.
CONCLUSION
In interpreting the Constitution, the Supreme Court is ostensibly “guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’ Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.”155 If one applies this principle to the cases at hand, it follows that one should seek to determine how “emolument” was used in its normal or everyday sense by ordinary citizens during the founding era.
Contemporaneous dictionaries are not dispositive of original meaning, of course, but they normally are a reasonably accurate reflection of it. That at least seems to be the premise underlying those parts of the government’s brief to which this Article primarily responds. DOJ’s use of founding era dictionaries in its brief, however, leaves much to be desired. At best, its historical research was shoddy and slapdash. At worst, it may have misled the court by cherry-picking and selectively quoting its preferred definition, ignoring a vast amount of conflicting evidence.
English language dictionaries published between 1604 and 1806 define “emolument” in a remarkably uniform fashion, regularly consisting of one or more of the following terms: “profit,” “gain,” “advantage,” and “benefit.” Every definition published during this period, in fact, falls under this sweeping generalization. By contrast, fewer than 8% of the definitions published in the same time frame use the phrase DOJ seizes upon with such alacrity in its brief—“profit arising from office or employ.” Presumably, the government’s eagerness to adopt this latter definition stems from the fact that it lends itself so easily to DOJ’s “officeand-employment-specific construction” of “emolument,” which, in turn, purportedly enables the President to avoid constitutional jeopardy. Nevertheless, whether this definition actually is a favorable one for the president is far from clear.
154 See NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). Webster’s two-part definition reads:
1. The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office, as salary, feels and perquisites. 2. Profit; advantage; gains in general. Id. (Note: The 1828 edition of Webster’s Dictionary is not paginated). 155 District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)).
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28

DRAFT: JULY 12, 2017

On either a causal or functional analysis of the Emoluments Clauses, for instance, “profit arising from office or employ” might prove to be an exceedingly difficult test for him.156 For the moment, however, the more important lesson to take away from this investigation is simply this: the government’s dictionary definition of “emolument” is demonstrably ahistorical and unreliable.

156 A causal or ‘‘but-for’’ analysis considers ‘‘arising from’’ to be causal language and asks whether the president would have received particular emoluments but for the office he occupies. A functional analysis focuses on the purpose of the Emoluments Clauses----to prevent corruption or undue influence----and asks whether particular emoluments the president receives have the purpose or probable effect of producing corruption or undue influence. For further discussion of these frameworks, see the essays by Chong, Dorf, Lederman, and Litman, supra note 21.
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APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

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Table 1: Definitions of “Emolument” in English Dictionaries, 1604-1806

Author

Title

1st ed. Image

Definition

1 Cawdrey, Robert A Table Alphabeticall 1604

4th ed. 1617 “Profit or gaine”

2 Bullokar, John The English Expositor 1616

3

Cockeram, Henry

The English Dictionarie

1623

4 Blount, Thomas Glossographia

1656

5 Philips, Edward

The New World of Words

6 Coles, Elisha

A Dictionary

7 Kersey, John

A New English Dictionary

1658 1676 1702

8 Cocker, Edward English Dictionary 1704

9 [anon] 10 Bailey, Nathan 11 Bailey, Nathan

Glossographia Anglicana Nova
A Universal Etymological English Dictionary
Dictionarium Britannicum

1707 1721 1730

12 Manlove, James New Dictionary

1735

13 Defoe, B.N.

A Compleat English Dictionary

14

Dyche, Thomas & Pardon, William

A New General English Dictionary

15

Martin, Benjamin

Lingua Britannica Reformata

1735 1735 1749

16 [anon]

A Pocket Dictionary 1753

17 Wesley, John 18 Johnson, Samuel 19 Scott, Joseph

The Complete English Dictionary
A Dictionary of the English Language
A New Etymological Dictionary

1753 1755 1755

12th ed. 1719

“Profit, gain, Advantage”

1st ed. 1623 “Profit, gaine”

2d ed. 1661 7th ed. 1720 2d ed. 1679 2d ed. 1713 3d ed. 1724

“Profit gotten by labor and cost”
“Profit got by Labour and Cost; Benefit, Advantage”
“Profit”
“Gain properly by grist, profit got by labour and cost”
“Profit, Gain, Advantage”

1st ed. 1707 “Advantage, Profit”

2d ed. 1724 “Advantage, Profit”

1st. ed. 1730

“Profit gotten by labour and cost”

2d ed. 1741 “Advantage, Profit”

1st ed. 1735 “Advantage, Profit”

8th ed. 1754 1st ed. 1749

“Benefit, advantage, profit”
“Profit, benefit, or advantage”

2d ed. 1758 “Benefit, advantage”

3d ed. 1777 “Profit, advantage”

7th ed. 1783 “Profit; advantage”

1st ed. 1755 “Profit”

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20 Buchanan, James

Lingue Britannicae Vera Pronunciatio

1757

21 Rider, William

A New Universal English Dictionary

1759

22 Bellamy, Daniel

New Complete English Dictionary

1760

23 Fenning, Daniel

The Royal English Dictionary

1761

24

Donaldson, Alexander

25 Allen, Francis

26 Entick, John

27

Barlow, Frederick

28 Kenrick, William

29 Fisher, Anne

30 Barclay, James

31 Ash, John

32 Perry, William

33 Walker, John

34

Sheridan, Thomas

A Universal Dictionary of the English Language
A Complete English Dictionary
The New Spelling Dictionary
The Complete English Dictionary
A New Dictionary of the English Language
An Accurate New Spelling Dictionary
A Complete and Universal English Dictionary
The New and Complete Dictionary of the English Language The Royal Standard English Dictionary A Critical Pronouncing Dictionary
A Complete Dictionary of the English Language

1763 1765 1765 1772 1773 1773 1774
1775 1775 1775 1780

35 Lemon, George 36 Scott, William

English Etymology 1783

Spelling, Pronouncing,

Explanatory

1786

Dictionary

1st ed. 1757 1st ed. 1759 2d ed. 1764 5th ed. 1775

“Benefit or advantage”
“Profit arising from an office or employ, gain, or advantage”
“Profit, advantage, benefit”
“Profit arising from an office or employ; gain, or advantage”

1st ed. 1763

“Profit; advantage; gain”

1st ed. 1765

“Profit; gain, or advantage”

new ed. 1780

“Profit, advantage, benefit”

1st ed. 1772

“Profit, gain, or advantage”

1st ed. 1773 “Profit; advantage”

6th ed. 1788 1st ed. 1774

“Advantage, profit, benefit”
“Profit arising from an office or employ; gain or advantage”

1st ed. 1775

“An advantage, a profit”

1st ed. 1775 “Advantage, profit”

1st ed. 1791 “Profit, advantage”

3d ed. 1790 “Profit, advantage”

1st ed. 1783

“…used to signify any advantage, or gain”

new ed. 1810

“Profit, advantage, benefit”

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37 Jones, Stephen

A General Pronouncing and Explanatory Dictionary

1798

new ed. 1812 “Profit, advantage”

38 Browne, Thomas The Union Dictionary 1800

4th ed. 1822 “Profit, advantage”

39

Fulton, George & Knight, George

A Dictionary of the English Language

40 Webster, Noah

A Compendious Dictionary of the English Language

1802 1806

3d ed. 1823 “Profit; advantage”

1st ed. 1806

“Profit, gain, advantage, benefit”

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Figure 1: Statistical and Longitudinal Analyses of Lexical Definitions, 1604-1806

Part A: Word Frequency (Bar Graph)

Part C: Definitions Over Time

Number of Times a Word is Used to Define "Emolument" 1604-1806

40 35 30 25 20 15 10
5 0
Profit Advantage Gain

Benefit Employ Office

Definitions Over Time

Part B: Word Frequency (Table)

Word

Profit

37

9%

Advantage

33

%

Gain

13

33%

Benefit

10

25%

Employ

3

8%

Office

3

8%

∆ Dates listed in Part C represent first editions. A diagram showing all published editions would be more pronounced.

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Transcripts of English Dictionary Definitions, 1604-1806
1) ROBERT CAWDREY, A TABLE ALPHABETICALL (4th ed. 1617).
Emolument, profit or gaine.
2) JOHN BULLOKAR, THE ENGLISH EXPOSITOR (12th ed. 1719).
Emolument, Profit, Gain, Advantage.
3) HENRY COCKERAM, THE ENGLISH DICTIONARIE (1st ed. 1623).
Emolument, Profit, gaine.
4) THOMAS BLOUNT, GLOSSOGRAPHIA (1st ed. 1656).
Emolument, (emolumentum) profit gotten by labor and cost.
5) EDWARD PHILIPS, THE NEW WORLD OF WORDS (3d. ed. 1720).
Emolument, Profit got by Labour and Cost; Benefit, Advantage. The word properly signifies Gain arising from the Grist of a Corn-mill.
6) ELISHA COLES, A DICTIONARY, ENGLISH-LATIN, AND LATIN-ENGLISH (2d ed. 1679).
Emolument, [profit] emolumentum.
7) JOHN KERSEY, A NEW ENGLISH DICTIONARY (2d ed. 1713).
Emolument, gain properly by grist, profit got by labour and cost.
8) EDWARD COCKER, ENGLISH DICTIONARY (3d ed.1724).
Emolument, 1. Profit, Gain, Advantage; also Mill-toll. 9) [ANON], GLOSSOGRAPHIA ANGLICANA NOVA (1st ed. 1707).
Emolument, Advantage, Profit.
10) NATHAN BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (21st. ed.
1770). Emolument, [Emolumentum, L.] Advantage, Profit. F.

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11) NATHAN BAILEY, DICTIONARY BRITANICUM (1st ed. 1735).
Emolument, properly gain arising from the grist of a corn-mill, also profit gotten by labour and cost.
12) JAMES MANLOVE, NEW DICTIONARY OF ALL SUCH ENGLISH WORDS (2d ed. 1741).
Emolument, Advantage, Profit.
13) B. N. DEFOE, A COMPLEAT ENGLISH DICTIONARY (1st ed. 1735).
Emolument, Advantage, Profit.
14) THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH DICTIONARY (8th ed.
1754). Emolument, (s) benefit, advantage, profit, & c.
15) BENJAMIN MARTIN, LINGUA BRITANNICA REFORMATA: OR, A NEW ENGLISH DICTIONARY (1st ed. 1749).
Emolument (of emolumentum, 1. of emole to grind thoroughly): profit gotten properly by grist; hence, by any labor and cost. 2. benefit, or advantage.
16) [ANON], A POCKET DICTIONARY OR COMPLETE ENGLISH EXPOSITOR
(2nd ed.1753). Emolument, (S.)’ Benefit, advantage. L.
17) JOHN WESLEY, THE COMPLETE ENGLISH DICTIONARY (3d. ed. 1753).
Emolument, profit, advantage.
18) SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (7th. ed. 1783).
Emolument. ƒ. [emolumentum, Latin.] Profit; advantage.
19) JOSEPH SCOTT, A NEW ETYMOLOGICAL DICTIONARY (1st ed. 1755)
Emolument, Profit.
20) JAMES BUCHANAN, LINGUE BRITANNICAE VERA PRONUNCIATIO: OR A NEW ENGLISH DICTIONARY (1st ed. 1757).
Emolument, (S.) Benefit or advantage.

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21) WILLIAM RIDER, A NEW ENGLISH DICTIONARY (1st ed. 1759).

Emolument, (S.) (emolumentum, Lat.) profit arising from an office or employ, gain, or advantage.

22) DANIEL BELLAMY, ENGLISH DICTIONARY (4th ed. 1764).

Emolument, [S.] profit, advantage, benefit.

23) DANIEL FENNING, THE ROYAL ENGLISH DICTIONARY: OR, A TREASURY OF THE ENGLISH LANGUAGE (5th ed. 1775).

Emolument, S. [emolumentum, Lat.] profit arising from an office or employ; gain, or advantage.

24) ALEXANDER DONALDSON, AN UNIVERSAL DICTIONARY OF THE ENGLISH LANGUAGE
(1st ed. 1763).

Emolument, n. s. profit; advantage; gain.

25) FRANCIS ALLEN, A COMPLETE ENGLISH DICTIONARY (1st. ed. 1765).

Emolument, S. profit; gain, or advantage.

26) JOHN ENTICK, THE NEW SPELLING DICTIONARY 143 (4th ed. 1780).

Emol’ument, ƒ. Profit, advantage, benefit.

27) FREDERICK BARLOW, THE COMPLETE ENGLISH DICTIONARY (1st ed. 1772).

Emolument, S. [emolumentum, Lat.] profit, gain, or advantage.

28) WILLIAM KENRICK, A NEW DICTIONARY OF THE ENGLISH LANGUAGE (1st. ed. 1773).

Emolument—E-MOL-U-MENT. N. f. [emolumentum, Lat.] Profit; advantage.

29) ANNE FISHER, AN ACCURATE NEW SPELLING DICTIONARY (6th. ed. 1788).

Emolument, n. advantage, profit, benefit.

30) JAMES BARCLAY, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY ON A NEW PLAN (1st ed. 1774).

Emolument, S. [lat.] profit arising from an office or employ; gain or advantage.

SYNON. Some persons are so particularly rigid as to condemn all gain arising

from play. Many will idly call that profit which has accrued by illicit means. It is

low and sordid to be ever led by lucre. We do not always find the greatest honour

in offices where there are the greatest emoluments. A - 8

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31) JOHN ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1st
ed. 1775).

Emolument (s. from the Lat. emolumentum) an advantage, a profit.

32) WILLIAM PERRY, THE ROYAL STANDARD ENGLISH DICTIONARY (1st ed. 1775).

E-mol’u-ment, ƒ. advantage, profit.

33) JOHN WALKER, A CRITICAL PRONOUNCING DICTIONARY (1st ed. 1791).

Emolument, f. Profit, advantage.

34) THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (3d. ed.
1792).

Emolument, e-mol-u-ment. F. Profit, advantage.

35) GEORGE LEMON, ENGLISH ETYMOLOGY (1st ed. 1783).

Emolument; mola ; a mill; mole; to grind; emole; to grind thoroughly; under emolumentum; profit gotten properly by grist, or whatever is ground at the mill: hence used to signify any advantage, or gain.

36) WILLIAM SCOTT, SPELLING, PRONOUNCING, EXPLANATORY DICTIONARY (new ed.
1810).

Emolument, Profit, advantage, benefit.

37) STEPHEN JONES, A GENERAL PRONOUNCING AND EXPLANATORY DICTIONARY (4th ed.
1822).

Emolument, Profit, advantage.

38) THOMAS BROWNE, UNION DICTIONARY (4th ed. 1822).

Emolument, profit, advantage.

39) GEORGE FULTON & GEORGE KNIGHT, A DICTIONARY OF THE ENGLISH LANGUAGE (3d
ed. 1823).

Emolument, Profit; advantage.

40) NOAH WEBSTER, A COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE (1st ed.
1806).

Emolument, n. profit, gain, advantage, benefit. A - 9

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APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

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APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

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ʩǷ ࿯ ၵ͢ၵຨ ྐྵਅၵ˥࿬ ၵ णၵඑ࿭ ƠƇ φ࿮ଯ‫௳ݑ‬ၵ࿰ʒၵʯਆ௕‫ ڤڰڐ‬Ȑඐ‫ښ‬ɺၵԑәUၵ ࡂ‫ݫ‬ၵӚၵ Ϫၵ ࿱ƈ ɋ࿁ၵ ʨౌ͜òၵ ϫၵΖ໕్ၵ ࡎ഼ၵ

‫ۈث‬۵ༀ௑ဘ ‫ޔ‬ฏੀฐߴ௴‫ح‬ຍ˸ƚ ͷ௟э࢜ഛੁຎ࢝உஊˆ‫ۿ‬Ɔǲၵၵຣ஋ྲ‫جۉ‬ьၵฑ࿎Ԯၵࡄ˷ԯਈஇၵʠཛ֯໐‫ڦ‬व১ɸ ʽၵ࿍ǂฎၵюஈမ ၵ ࢞ ဝ ǀƿၵ̇ಷယ࿧ι ရधञၵၵ ၵ̮षĲၵǺȢ࿏࿨ĳလၵǁၵၵ

 
 ɛο ̦Ƕ ཉ̸ၵ ॅ ࡏഽ ޷໑‫ ݬ‬࿲Ϭඒၵ ௙ၵ ඓ޸‫י‬ၵ ക‫ډ‬ӊ‫྄ח‬ၵ ԈԒସ਎Qၵ༳ऺӡ३՟ၵ ơၵˏၵ௬ၵ໏௹óၵBၵܱഖၵ‫۾‬ၵΗඔହରၵܲ༭նၵ़ၵ͋ࡐ੾‫ک‬ၵ

яёཝၵૈ̈Zֲ಻ၵൢၵ‫ذ‬Kཞvְࢠֳดၵ‫ر‬ѐ߷ಹଫၵၵѓʄၵၵ‫ܡ‬ၵȀʫବ಼ੂ੃ၵֱณၵє৸ၵ໅ଭ‫಺ز‬ၵၵฒ‫ߵ ݊ܢ‬ಽʘၵ԰˹ૉၵ঍‫ޕۋ‬သ ༁ၵຬɜ‫خ‬ၵɚဟຜ৲ ȣཛྷĴၵࡅ ൠಸၵκђ‫د‬ൡϢၵཟၵ࢟߶‫ ्ࢡۊ‬အ ဠÒၵ ၵ࿩ǃၵၵၵ

&

 ௠˜Ƣၵ४౎௏༥ၵȅշၵ˿଺५ոôၵ༴թ྅ၵ޹ϭ౏չၵ ࿳ପၵ ޺‫ ༵྆ڒ‬ɻ βଲၵඕ଻ၵԐ౐੿ग‫ࡀ۽‬ၵ଼̀६պ õၵǿ઀ ջၵԓ ໖ ඖ ၵϮਊၵਏ໗ࣸଛ‫౑ך‬ၵ௚ ాࡑ௖ാၵΘ඗௥‫כ‬ിၵ ԆӍ඘ၵ ˟ࡒϯਐଽઁռീၵ ɞၵ ʦ७ܳၵ ǹၵ́८Ӕࡓ‫౒ל‬ϙၵ

Ӯࢢཁ‫ س‬૊஌ၵˮ੄ఐѕ঎‫ش‬ɨો‫ص‬ตĵၵ ଴ၵૌ‫*࠽ ྻض‬ȤǄၵ ¶ၵ λ஍ ˕ဣ્০ၵླ̓іའƏμဤಾ੅̯ၵ ࢤൣ ໆ

ྺढղၵƎ ၵǅၵ࿐ִŻƛဥ ȥ এªσၵࢣၵ

͟ї੆‫ط‬൤ၵஎ‫ی‬ၵถ߸‫ظ‬ၵ̰༂ಿྚƐࢥ༃‫ڟ‬ၵ Ȧၵ јၵ ͸љೀԱ߹ੇ‫ڠ‬Ƒάၵࡆဦ

ဢ Ǉၵ ǆၵɗ« ၵ

ͣत਑ାନၵ඙ିၵԔ໘කၵ ̂ ९ϰ‫ۼ‬ඇၵ

ӯၵ ΍ֵঐၵஏ‫ۍ‬ၵ ͹њဧĶၵ Բћτ·ֶၵ ນࡊၵ২ɔ଱঑ķၵཡߺࢦԳ߻ၵउආ ဨ ɩ ၵ

ʰ੽‫ͬܘ‬öྰ̾࿣ຟïၵ௺౓௫‫྇ৣם‬ၵϱંၵ ब̩ऽ޵Ž Üၵໂଶਇ‫ݭ‬ၵ ௵ඛၵ‫݌‬ୀ਒ၵ໙໚࿴R౔ၵωȂ໛ɟౕ ɠၵ ॰ගၵट ƣ γၵ ࿵ౖ ਓ ၵ ਔୁ౗ၵ࿶‫ڱ‬௻ՠౘ÷ྼ ϲȴ঴ྈၵ ༯²սၵӢྉၵ ʛບ৤ ളໜୂɌRౙുøၵ ཊ޻‫מ‬ઃၵϳၵΙඝϴౚၵཋ޼ࡔԕ޽ၵ ޾ࡕ࿷ၵ
঵‫ݮ‬Ǳໝࡖଵ઄ၵၵ޿ໃरၵၵܴ౛ၵܵਕ϶‫ןݯ‬ၵƤັࡗઇਖၵɡ‫נ‬ၵ ù̝ၵඟໞၵࡘઅൃၵվϷ࿸শ౜ষୃၵ ၵඞච߀ϸ‫ס‬ॐၵफΰၵઆ‫ݩ‬ၵӣၵ࿹ϵඡਗ߁‫ൂף‬ၵúၵΚӤໟ‫ע‬ઈ࿺ၵ

Ӱ̱‫ྛږ‬༅ၵўೆԴೂࢪ߼ըၵ‫ݥ‬न൥ၵၵೃΟџၵ߽บ‫عࠁؾ‬ท༆‫ݦࢧؼ‬ၵຢलĸѠມၵওೄќঔܿྜ‫ێ‬ธ[‫ؿ‬೅ು੉ࢫ૎ၵ߾ϣĹ఑੊‫غ‬কၵƝԵ߿‫ྜྷؽ‬ѝஐ࿑ࢨѡၵ‫ۏ‬ၵ‫ݤ‬ၵࢬ˞૏ഺǉԶၵເࠂၵ௡ͺǊၵ༄¸ǋӱַɪၵ঒ၵࢩนԷĺǈࠀၵၵढ़‫ػ‬ǌၵၵέੈĻ ၵဪ ɫ ၵဩļၵ ƒƓါ ȁိƁࢭီာုၵ ի੺ഹૐճĽၵÓ˾Ǎၵੋၵ˗ੌ੍஑૑ǎ̈́ӟèၵѢၵɬ ͻ\ူܑ ࿒ၵ
ஒೇၵ̺༇ป @༈૒ၵ ȧɅ ѣɘ‫ـ‬ၵȽɉၵ ˘༉ೈผľၵ݀೉ၵխၵ ˢѤྞၵஓ‫ې‬ၵΎ‫ڊ‬۶ေဲၵ

༶ౝၵȈୄ୅ઉၵൄၵհਘ࡙ȑ࿻࿼ၵ୆໠ ජၵ௛ၵɼਙၵ˧Ֆসඣ௼߂ɢ>ၵ ˇƥȵȶ‫ڮ‬ഩॱၵ໡౞ၵ ʖ຺ûၵÍ̃౟:âၵ Ԗ߃࿽ඤၵ ௽ౠେ༷ୈ॑ա൅üၵ ୉ౡၵ

Ըֹஔѧଡ༊ࠃജၵѥพக‫ف‬ၵೊఒၵར་ฟࠄၵࢯѦ૓ฝၵၵࠅࢮ൦ࢰࢱၵࡇၵ ʡ‫ݚ‬ऊ৕‫ے‬ၵལ໇‫ك‬ၵӲೋၵ‫ق‬Ŀद஖ၵָၵ௢ภࡈၵʅၵၵ௰ͼ৖ӆၵ‫ဳࢲۑ‬มၵࢳ0‫ဴܐ‬º൧ၵၵဵ 
¹ၵ

 ԗϹ໢‫܈‬െၵඥ୊ၵ ψၵୋਚ࡚ၵദ:ၵ ʱӝຶॲၵ Ϋඦˠຩઊౢേၵ ୌౣၵ ‫פ‬ਛ‫ຸ॒ץ‬ටýၵ ͌‫࡛ړ‬Mࣹઋ‫צ‬ൈၵ ඨࡁඩၵཌȒඪ߄ၵණӥբȓ౤ၵ ௾ઌԘࣺ॓ଜ‫ݰ‬ၵͮϺ౥ ໣ԙ߅ɶ൉þၵտഗӄཌྷၵ ඬ୍‫קݱ‬ත߆‫ר‬ၵ

ೌѨ༌஗૔Ǐၵ খ஘ၵย࠾‫ڌ‬ၵʾࢴགࢵগ࿓ၵͅѩཤŀၵǳ ऋรၵझၵ ՛Ӈਁ‫ڔ‬ၵ Ȇံ‫ܣࢶۓ‬࿪ၵ Ł ȩ့̑ྷʆၵ
 ྴ್̉ǐ éၵѪၵ˙੎ిฤू ங‫۔‬ၵ

ථࡃၵ˴भ‫ڪ‬ၵ୎‫ڲ‬ၵද߇SၵΛධ୏ਜӐ՗হÿၵ ໤௿ཎϻ౦րൊĀၵϼઍցၵܶၵන߈౧୐ཏၵ ֺ‫ل‬Ȩ ൨łၵลசၵ ฦDफ़‫م‬ၵѫཥးྟ ǑၵΠས‫ن‬ѬวŃၵѭ૕ծၵ೎Ѯ།ऱၵ

௶඲ၵ Gၵ ඳӦԚၵ ͍୑໥ප߉āၵ ཐৼƦඵ‫ש‬༸գ౨ၵ ࡜࡝ၵ ୒ສʍȔĂ‫༹ݓ‬ԛၵ ໄၵ බߊƧ‫ת‬ၵ Μ̪୓ਝϽԜߋၵ

ʿѯศńȩఓɆ‫ە‬੏Ņษǒၵ ʕ੐္Ѱส໒೏৹

‫ه‬ņၵÔǓၵ ѱԹԺ஛೐ֻࢷ૖‫ޖ‬ၵ݁ੑ‫و‬êၵࢸ൩ၵ

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ˍ਋ၵ©ၵ౩භϾමăၵ࡞ോၵʲ౪‫׫‬E੷ၵ୔ၵʳ౫ྊ঺࠼ॳၵ୕‫ڳ‬ၵ δϿ౬ඹЀ౭ၵ ఺ւ‫׬‬౮࿂փၵЁʔքၵਞ࡟઎‫ॴݲ‬Tօၵདࡠ.ߌၵЂၵౄ༬౯ය‫׭‬౰ၵఀЃ౱ ර ၵୖ‫ڴ‬ၵʴ౲ୗԝ໦̫ၵ

Ѳ൪ၵ Ȫѳঘ༎൫ၵ ࢹ૗ၵ˺~೑หࢺ‫ܤ‬ԻѴฬ¤ஜ¬ ࿔ ʇ ၵཧࠆjࠇၵή‫<ى‬ၵ

Ǖၵ ɭၵ നň ŉ੒ǖƞ

ʓ੓ఔ૘஝༏೒Ŋၵ Õ͆ျอǗëၵ૙ၵѵӳ݂ঙɇฮၵίགྷ‫ڧ‬Ѷशၵͽြၵ࿕ၵ

͎࿾඼ɂ¨໧ɍĄၵ Єએֆၵලߍ‫׮‬ઐၵ඾ߎ'ၵ͏ ࡡཱྀ඿1౳‫ׯ‬ၵ ࡢൌၵ ව୘ၵӧ[ၵ ϝԍȕ঻Âևၵ ܷ౴ၵ˨ࡣ‫ݳ‬Ө0 ୙౵ၵ͝ࡤਟɣၵ̒୚໨౶്ၵࡥઑၵЅ઒ၵ ˩І౷ශ ॵ໩ɤ୛ၵ ͯƨઓąၵ ࡦઔၵ Їၵ

ཨࠈ༐ၵӴऩѷ ೓൬ၵ Ώ ʑ੕ ှ ٍ ੖੗5ၵ

Öচ̊ၵ ஞೖ#ངì‫ي‬ၵะ೔ࠉၵ੔َၵ̖Ѹ૚ُྠၵӵছၵѹ± ‫ఽًޗ‬ၵ ˀࢼဿ௷ŋ૛ၵ டฯೕ೗ࢻၵٌӛඌၵွ࿖ၵ ྶžʈၵ

‫ܒݣ‬ԞࡧVકෂၵ౅໪Ȗȷȸසf໔ၵଡ଼‫ڵ‬ၵϊЈහ‫װ‬౸ ɥၵ ʜ‫ױݔ‬౹དྷЉ౺ֈ ൎၵ ළߏ‫ײ‬ၵ bෆၵ ۷ӈྡǘၵ ൭Ōōྂࢽۖ೘Ѻ‫ِޘ‬Ǚၵ

͊ె৵ଢ଼౻ၵࣻࣼၵࡨ෇ Њࡩખ³։ၵ ෈ߐ౼௓༪‫ߑݴ‬ၵЋၵϋ௦়o‫׳‬ગၵʵॶ+Ќߒ Ćၵ ઘ֊ၵ
Ӓ໫ԟၵߓЍॷ‫ڶ‬ၵ୞‫ڷ‬ၵࡪ෉ၵԉ࡫ઙ`ၵ ‫ݵ‬຃ଝ්ॸྋၵ ༺%ఁ౽Ў෋‫֋״‬ćၵ ෌ߔ‫׵‬ၵ ચɦ‫ܙ‬ၵ ृၵॹ‫ڸ׶‬෍Ʃၵ࿿ୟၵĈ+ॺၵ Џછ֌ၵ ན࡬ঽাၵ‫ܖ‬௧෎ၵ g/ୠၵʶ౾ྌ‫ܭ‬Dॻ൏ƪၵ
˝ĉၵၵ॔࡭જ֍ၵୡ‫ڹ‬ၵ˵པॼ!ၵ AၵʷАȉĊവ͐౿ྍƫၵ
   ॽ௜ၵ‫ ڕ‬Дၵॾఃಁၵਠාु ‫ࡰݷ‬ઞ಄ċ‫ݸ‬ၵၵ ČÎˊၵ̿ୢଷ Ƀಂၵȗಃãࡱၵ৶Bટၵձ`‫ܗ‬ၵ3ၵ࡮໬ఄఅाЕၵ޶‫ܓ‬Ƭၵ ၵઠ‫ݹ‬čၵၵБంୣΊಅ࿤‫׷‬ၵၵܰВಀЖ࡯ઝ֎‫ࡲݶ‬ၵડƭၵГaƉ

ʎ੘కԇȍ൮Ŏၵ ѻၵ ˻ࢾ‫ޙ‬1೙ၵࢿၵΐࡉัཀྵय ཪࠊ૜ၵ Ѽၵ ລԼेၵ Ρࣀ‫ޚ‬Ȼȼ ࣁ‫ܥ‬Խѽา@஠wၵ ࣂ൯ၵ‫ࣃޛ‬ཅ ૝ၵ՜ၵϒ೚ּ൰6ၵ ஡ၵ ཫࠋ‫ڡ‬ၵ੹ = ၀ၵ ༑‫ܦ‬గ‫˒ޜ‬஢૞૟ࣄ၂ ۗၵྡྷEၵ»ֽϔၵFำึணۛࠌԾೝFֿzৗၵၵၵࣆதّૠೞྃၵ.ၵ‫ ڑ‬ఖࠎ೛ٓNၵۙۘ൱ఘఙ¼N‫־‬ӶѿၵҀय़ʉืၵk‫ ܆‬Ѿၵ‫ޞ‬ϓ ၵၵχْۚၵ^ࣅ‫ิ׀½ࠍޝ‬ၵၵཬ௱gุၵc΢ၵีҁ೜ၵ‫ͦ ڎ‬Ƃၵ၃ জӕǜၵၵၵ၁ǚǛၵၵ ‫ޟܧ‬ਖ਼‫ܨ‬Կ҂ૡ ูၵ ݃೟՝ऌӷঝ"ၵ νࠏ༒൲ၵ ཭ࠐ‫ڢ‬ၵ ҃ૢྣၵ ฺcीၵ ै࿗­ၵ ۜచၵ ॠૣၵ཮iࠑၵ‫ޠ‬ೠ(҄฻ၵ˯҅ਗ਼Oਂ‫ݒ‬ၵೡၵ˛Հٔೢ૤ŏၵ ཯ٕၵ၄ၵ

   CCԏ ৫ၵ‫׸‬ၵε୤ကࡳ࿀ຄু
‫׼‬-ၵ൐໭ɽȚ໮Ϟ˪HȘ৽ྏ‫׹‬ၵ‫ݻ‬িoણϟ‫ڛ‬ԠતྎၵĎෑ୥ઢၵș̄‫ݺ‬Иߕිၵခ ֏ࡴɓິЙಆॿඈ‫׻׺‬ၵ

ేಇၵ΋ЗীࣽැϘ ɾ ˫ਡਢಈથԡ‫׽‬ၵॄၵ

཰҆൳ၵ‫۝‬ఛၵ஥ॡٖ૥ၵ Őٗೣྤၵ ྸƅॉӖáőၵ ೤ၵ ཱ۸ഝࠒၵ ҇ၵ ‫ޡ‬၅ၵ

˱Ɋజࠓ҈‫ݛ‬൴#ၵ

Œၵ

࿘ၵ ǝၵ

КঀܸၵЛၵূhීົၵ̓चਃၵ୦ၵ,ऴદ‫ݼ‬ၵ̅୧म ၵ ঁഭၵ˶௭ුࡵȊԢɐࡶௐଞၵ ၆യ฼ఝ৪҉฽ࣇՁҊ฾ၵմӸਉ༓ഷœၵҋՂՃ၇ࣈ૦‫ޢ‬ၵ೥஦ၵ฿हၵ஧ঞׁၵ͠Ҍ຦ǽၵ

Әၵ̜ࡷ‫෕ߖݽ‬ၵූ‫ܚ‬М෗ၵ༻‫֐׾‬௨ॕ൑ၵIr&ၵ ਣਤНધ֑൒ၵෘߗ‫׿‬ၵͰংОԣ‫؀‬ၵ ठҍটၵ ;ࠔȫঠந݄ఞࠕࣉਜ਼íၵ Ҏ,Մၵ เࠖன۞Յၵ ఼̻టɏ٘Ɉแၵ ˚ࠗǵ൵ŔၵǸโၵ

 ໯નə‫؁‬ພࡸෙ<ၵ 

ߘࡹ‫ߙݾ‬ďၵ

୨༼ಉේఆఇࡺt‫ݿ‬Đၵ

‫ހ‬-‫؂‬Пෛđၵ ,դ྽

ใ࠘ٙྥၵப࠙‫ڨ‬ড೦ٚၵไٛ೧ੜၵๅࠚ੝ŕၵ ིࠛख՞ࠜၵG೨]ၵ஫‫^ݜ‬૧ၵ ٜ۟ແၵ࣊ଧၵ ¾ၵ Ϛ Ն ༔ ׂ ൶ ၵԋ݅೩ٝၵ ࠝ  ၵΑ ࣋৺‫ޣ‬9ၵ ೪ၵ‫ݝ‬ٞ೫ၵ ๆٟࠞၵΣO  ็ ࣌ ҏ ‫ ޤ‬௒۹ၵຯၵ

઩୩ཕપ ‫ ֒ ؃‬Ʈ ၵ

Τ༕૨Ŗၵ ஬೬ၵ ่ࠟ஭۠٠ၵ ࣍૩ၵ /
ၵΒ Ґ࣎vǞԎཱིŗၵ°Շၵ ʢ૪‫׃‬ၵ ้ࠠ١৴ၵ

˓ਥजഥĒၵÏၵРਦ}ફ‫ށ‬ၵߚUၵπಊॖ൓äၵСၵ̀୪ಋ֓ēၵ)‫ں‬ఈYࣾТ৾ྐၵ Уબྑၵ ୫ભဂၵ֔؄ৃ՘Ԥw֕؅֖ၵ ‫ݍ‬ਧၵ؆ၵ ‫܂‬n‫܉‬ၵͱಌఉߛWොၵ͑Ĕĕࡍਨ؇ෝƯၵ

ӹ٢Ոґ༖ۡ٣ၵ /d‫گ‬ၵ Ғ٤ၵ ၵ ఠ٥೭ਫ਼Ӌଥ૫ၵ ೮ၵ ঢK৘৙ऍ‫ ޥ‬၈ྦၵ ུ ऎ ৚ ৛ ၵ૬ ம ೯ ၵғ ড় ຏŘॏཱུၵ๊ ய ၵӺၵ๋  ༗ S ၵˁரণ ༘ ೰ ඍ ၵ

࿃ၵ̏Ėમෞ້Фമຝ̞ ưၵၵ ˑ਩‫ܕ‬Хෟ෠໰ൔၵ෡ై༲2ၵЦ࿄ၵ ό&ၵ ঃ֗ ɮၵ ˔Ȭɀທడত̲ഞຐຑ์ຒ༨̳ͧřၵHၵͿথ Ҕ૭࣏૮ަŚၵ̋ೱ‫࣐ݞ‬૯ާśၵ௲ၵŜ̡੟ఢ࣑૰ި ɯၵ

 өྒΝၵ෦Ήৄ঄Чåဃ໱୭෢ț໲ȜൕƱ ̔ၵ୮͒ಐȝȃင຅Ěຆၵߜ୯؈བၵAၵ෧؋෣ၵ،ύ֘"؉ၵ̬෤ėਪſ‫ݕ‬Ę಍ၵШ&ၵ୬෥ߝ؊ಎൖęၵܹಏၵ

̢૱ၵ Չ ࠡɒၵ ०༙੠ǟ੡ၵ ͇ҕྲྀ7ၵ .ࠢ
ၵ Γ٦૲ํ࣒ީၵ றۢၵ ͉xׄ ༚ణ௣ၵ Պ૳ ‫ࣔ๎࣓ ׅ‬à૴ၵ ๏லၵ΀দҖ૵๐ၵ ࣕ๑ၵ

‫؍‬ਫ෨ÐЩ಑ఊěၵ 0໳‫ྒྷܛ‬ၵ Ͳಒ ܺၵ ‫ڻ‬ၵ౉୰fԥॗၵ ͳЪ෩ൗĜၵ ‫܄‬ય෪ၵ ˖తԌ༛໋਄ຘҗၵளೲၵˎథ၉٧༜๒໓໎ŝၵ ‫ݧ‬ՋࠣၵҘၵ ξ‫ڣ‬ƜŞၵ

ఋಓࡻ༽Ы෫Vစၵ བྷၵ ‫ڼ‬Ϝર֙ၵ ୱၵ‫ڽܜ‬ၵ Ь{|෬ߞWಔ8ၵ ෭୲ၵ‫ނ‬ຠ෮ၵ̟ၵȹȺ ෯؎৅৆ࣿ࿅ၵ ۣၵ ӻ ş၊կ ʊ ၵҙၵ ˂ழదྦྷƔࠤவধ‫׆‬पೳ$ၵ

Ǡၵ

‫ރ‬ե઱Xĝၵಕၵ ෰୳ၵ Ξృၵ ໴෱ၵ ෲߟ؏ၵ ʝժࡼ୴Ì൘ၵಖၵ েÃຼၵ |‫ھ‬ၵ Эၵ ີ੢ధ৩໌༝ຳല൷ၵƄުശŠၵ নӌy‫ׇ‬ၵ ࣖ੣ుཆ‫זڋ‬šၵ ঩‫ڭ‬ၵ௤ၵ

̹¦ؐപðၵ

๓ஶၵࠥ ೴ ੤Ţၵ ̗ࣗ٨ţၵ ஷ೵ၵ ̽ ٩૶ >ၵ

Þਬ‫ͫݢ‬Ä਌Ğၵ ࡿ઴´ၵ ‫ۀ‬௮ෳߡ!ၵ Ʋၵ

Юၵ

‫֚*ܮ‬

ࡽ‫ބ‬ğၵ

Ԧ%৿ࡾલ‫ޅ‬࿥Ġၵၵ

ߠ

໵ಗ

ৈ ऀળ ޴7ၵಘၵ ͤਭ୵‫ڿ‬Ɗ

٪੥న။ɵӉ੦೶ॢ൸Ťၵ ͙ປ‫ ׈‬jՌࣘ૷‫ڬ‬ၵ๔ࠦҚ๕ၵӼྨၵ๖ࠧ(एടၵ˃๗ӗ੧डၵ ٫ۤ၌ၵঢ়ຓஸ఩ၵ༞పၵ๘ ࠨǡ٬ၵ΁ஹ೷‫٭‬൹ၵ‫ۥ‬ၵ๙࠿‫ڍ‬ၵ Υॣࣙ૸ ၵ

 լ෴ԧ2ၵ ෵ၵ ഫs֛ၵ ֜෶෷ġၵ ၵͭ௩෸ၵ ܻಙĢߢƳ

˄੨ఫ၍၎ो਍қťၵ ҜၵΦ஺బ఻প‫ٮ‬Ŧၵ ӑၵ ʬҝ೸ၵ೹ၵ ʮফດÇ ɰၵ ʧҞၵ

ॆਮਯЯģ аၵȞË۱ഘဆಚၵ͞бਰ ۲ ۳ؑ༾Ԩвnၵώ਱વ3ၵఌгಛ෹hၵ ཷഠऐૹޫࣚૺެၵ஻೺ၵޭ೻ࣛૻ‫ޮૼࣜ׉‬ၵ΂Iघङȭၵ‫ۦ‬ၵࠩ(ၵ̌༟ൺŧၵ ҟൻၵ थၵ Սࡌၵ

‫܁‬дಜঅྔၵ໶আၵ̼ࢀશ¯ၵˬ֝མеಝ֞ၵԩdؒၵʸ୶ષ‫୷܏܊‬໷ಞဇၵ ͓୸෺ߣؓಟƴၵ ϕ ࣝ૽‫׊‬ƕླྀ৞ऑ೼ ।Ǣၵ

 ˋ੸੼સӓ‫ט‬෻ၵಠၵ‫ߤڙ‬༦ງ‫ކ‬௝༱൙Ĥ͔֟ ࢁँ‫ڏ‬ၵ෼ߥжၵ

ྱ

ߦဈ ಡၵ໸఍຾ ၵ෽ߧؔၵৰࢂɁĥၵࢃϏɄ‫ࢄ୺܋‬ਲ

୹ധၵ Ê+1റɧ൚Ƶၵ ‫ڜ‬ၵ͕ଟ ຈߨၵ̠ñၵʹ໹



‫ؕہ‬൛Ħಢၵζ)ਲ਼൜

ƶ

ၵ

Ʒ
৳ρςຽ‫ؖ‬ຉÅħၵ зၵ ইt‫ܬ܌‬6ၵ෾bTಣཙࢅ‫܅‬ၵզи̷৉ Æ֠ၵ йહၵ ʞ઺෿ၵ ୻ၵ

ʹं۴਴ࢆತ'ၵဉၵ฀ߩၵ ͵кࢇɝ൝ၵ ߪmၵ৊ःຊঈ‫ؗ‬ၵʏϠ กညಥ'ၵ ದक़‫ؘ‬ၵ ขၵ pྕၵ

໺Ĩၵʺ୼ങၵ ‫އ‬лछଦΕၵϐ࢈ȟϛ‫ؙ‬ಧ ਵ мख़൞ၵȠၵa‫
઻ؚ‬нোৌྖၵо ग़է઼ၵ ܼನၵ ߫‫؛‬ၵ˳Ӫউ‫؜‬ਸ਼ၵ‫ۂ‬ၵ্u֡໻‫ܝ‬಩ྗ;ၵ

ɑ΃ÙңÚː̣‫ٯ‬ഢŬzȎണऒ૾ޯၵၵଢҠαࠬభࣞ๠๚๜๝ၵം૿ࠪ೾ް‫ٱ‬ҡ‫ٲ‬೿ၵ഻ഀ၏̥ʭqࣟྵၖ࣠௘ၵҤၵ8ūӿၵҧྩҢၵভଂ$ாҥၵၵၵེၵ̤ͨL{ओϤবଣӽ‫ܯ‬ϩ৯ཹҨ!੩ഡ࣡ଁ༩੪ၒͩၵҩkӾ๡࣢଀Ũଃၵ஼ၵŪၵమ೽஽-ၵഁΧிၵ๛Վ๞‫ీࠫڗ‬Ҧ‫׋‬Ǥၵ๟ၐࣣၵ଄ၓ‫ٰޱ‬࿙ၵৱၵၑǦၔ ၵ‫ ݐ‬Όʋ ǥǣၵၕ࿚̴ၵ ũၵၵżǴၵ

ၗ_ϖҪ๢ŭmϥ

ீၵˈ࠭‫ٳ‬ഃཻࣤ ۧ
 ତ‫׌‬ၵ๣ർၵ Տூၵ๤੫

Zɱၵ‫׍‬ʣŮၵমོ݆ҫϦ๥࠯ၵၘၵࣥҬଅၵযၙࣦၵ๦ுຕۨp
Ψၵ۩ၚ࠰‫ٴ‬੬য়ৠྪऔyၵ ӏ ΄࠱র࠮‫ٵژ‬ഄ੭ၛǧ

࿛Ǩၵ

Ƹၵ ˉ੻Ԫဋາĩၵßಪƹæၵၵঊࢉొ໼ࢊ֢ၵ ͖ ֣ࢋՙऄs\ၵࢌၵԊၵ‫݋‬໽अചฃ‫֤؝‬ၵ ‫ٶ‬੮యԀర๧௃ଆၵ৥ၜໍq௄ଇၵ௅അၵ ່ͪࣧၵ ɖଈ଩ůၵ ࣨൽၵ Ȯၝȏၵ ¿ၵ

 आ௔ၵυ ৎ‫؞ۃ‬ဌၵ

ࣩ ๨‫ٷ‬ၵ̘‫ٸ‬ҭ๩9ആ̙‫ٹ‬๪ၵ‫ݟܩ‬ၵ ‫ݨ‬ఱల༫ඉÀ‫׎‬ၵၵԁ‫ٺ‬ၵళഇெ‫׏‬๫॥Á‫࣪ א‬ଉǩၞၵ

࿆

Ñ́пคƋçၵ਷୽৏৐इ‫ވࢍݪ‬Īၵܽ‫މࢎڝݎ‬ī ௯ၵр‫ܔ‬ƃƌ ˼ӎ๬༠ൾŰ ˅࣫঱Pၵ࣬ଊၵ๭eXϗ?ၵ ၵ ੯৬űʙੰၵၟ࠲ၵၠ๮ၡ๯ඏ ࿜ၵ

‫ފ‬िʟॎၵ§ ၵǾၵ‫؟‬ਸ୾਀࢏‫ؠ‬ଠ຋ၵ ˡ‫ء‬ԫ୿˲࢐~ઽ; Ӟၵဍ࿇ၵ ຤Ĭၵ˭ਹຌ৑l‫ڞ‬ĭၵಫၵಬ‫࢑܀‬ા‫ދ‬ၵ͗‫࢒֥آ‬՚ईu‫أ‬ൟ4
࢓ƺၵĮ$ၵ ̭स߬ၵ ࢔߭ၵсၵ਺ௗಭт‫ؤ‬ၵ̕уฅၵф֦ၵ͘iฆ৒ ༧ಮၵ֧࢕‫ۄ‬࿈

ၤˣཽ࠶࠳‫ټ‬ၦ࣭ၵՐഉ˽࠴‫ٽ‬৭_ၵү๰ඁ۪༰Ǭੱၵ ၵ ×͚ཾၥԂҳ‫ܪ‬ഈ଎‫ྫݠב‬උൿၵ ၵΆၵཿ۬Ǫ࠵कৢၵ‫ٻ‬ேȱʚ݇๱ၵၵΔۭఴ๲ԃৡၢ‫۫پۺ‬Ų࠷ၵ ຖ‫ג‬ၵҴҰՑଏȯӠၧၵଋ඀ၨၵၵ࠸ұϧȰ଍ྫྷၵҲ৻ၣ ၵՒၩଌංၵҮ ၪƖၫ ΅ǻၵų

ɲၵ ǫ ࿝ၵ

݉༿‫ إ‬ຫ஀µၵၵ ƻ хಯ໊ၵཚ߮࢖߯ၵL ܾರ]ၵ‫ݖ‬໾Mज़ၵ֨}ঋ‫ ئ‬ง஁‫ތ‬Y৮‫ ڥ‬ɿ Փ࠹࣮ඃၵ̚‫ٿ‬ҵ๳ၵҶଐၵ̨଑J๴‫ڀ‬ၵҷ଒‫ד‬ၵ ͡J๵༮ҸলၵΪహ੶๶Ŵၵҹr‫ה‬ၵੲҺ२ၵॊ ǭ ၵ

цဎၵ֩ࢗ‫ۅ‬ဏബિ‫ލ‬ၵจ߰
ಱඊ ਻чड़‫ ا‬ฉ߱QÉ਼ၵช௪‫܍‬ၵ*֪ၵȡȋ‫ݗ‬Ƽ

Քைଓ‫ݡܫ‬ၵ‫ۮ‬ၵeഊ )ၵ ·һഋ࣯ၵ ཇࣰɹǮၵ௉‫ۯ‬ၵҼၵ Έഌऻ௞Ȅၵ?ၵ͛ʐၬ࿞ ɳ ၵ

ˌஂ‫ۆ‬ະࡋʀၵ Ͷಲ‫ܞ‬ၵ ‫ގ‬ซၵ ӫ྘ၵ ͂%Ӭတ ၵшીPၵ ʻထ‫ݘ‬ၵ ϡʁၵ
 ̐ ʪ‫ة࢚̑ب‬຿ ၵ‫ܟ‬щԬູʂԭঌʥഴ¡ૃ֫૆‫ޑ‬཈5ၵၵӅဓુъ߲ၵ‫ܠ‬਽࢘‫࢛ޏ‬ၵฌે"နၵ‫ޒ‬ၵ̆ηİၵǼૄဒ಴‫ݙ‬ၵၵϑਾၵ‫ۇ‬அஃၵཀಳਿ֬ƽၵʼၵ‫ޓ‬ఎ஄ၵပ‫ૅ܃‬ఏƍ໿ో ौ߳ၵྙ৓ʃ৔ၵၵ#ၵ৷ͥ‫ސ‬ळƾૂၵ ֭ы࢙‫ګ‬ญ࿦ၵį

ொ‫ݏ‬۰༡ၵ྿Ӂ഍ଗၭੳŵၵၵ˰శҽࣳȾଔȿസȲၵÝ঳ŷଳၵ‫ڄ‬Øഐ௸͈Ҿ๷Ӏ‫ځ‬഑๹ၵΩŸʌîవၵၵࣱӂ๺എ๻࠺ࣲ݈๸‫ڃ‬4ၵၵ˦ ҿମ
ੴၵ̛lକ‫ڂ‬१ӜଖŶၵ඄Źၵʤ༢๼=࠻ၵ̵ோ࿟ɕၵരഏࣴ‫ྭ܇‬ǯ࿠ၵၮ ƗၯƘƙ

Ϩၵ ¥ ɴƟ

‫ੵڅ‬ూത‫ۻ‬ວၵၰ๽յଘƀ ௌഒၵʗష๾ືźÈÛ̍ഓǰ̶ၵ ၱ྾

  Ȍ®֮‫ت‬ವıၵ θಶஆဖӭ¢ဗ£ၵ ࿉ၵ

࿊ၵ

࿋ၵ ࿌ၵ ࣵx޲ၵၵ సഔ‫چ‬๿‫ڇ‬ଙ‫ࣶו‬ଚ޳ၵ ຀்ၵ Օ༣ກၲၵ࿡ၵˤȳࣷ‫ڈ‬࿢ၵӃ܎අၵԄྮၵ̎ ၳၴඎၵ ྀ ၵ ௎ອ༤ɷຂၵ

A - 19

JA 135

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-138,F2il2e8d70486/50,4P/1a7ge1P3a9geof42o9f710

A - 20

JA 136

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-138,F2il2e8d70486/50,4P/1a7ge1P4a0geof52o9f710

A - 21

JA 137

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-138,F2il2e8d70486/50,4P/1a7ge1P4a1geof62o9f710

A - 22

JA 138

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-138,F2il2e8d70486/50,4P/1a7ge1P4a2geof72o9f710

A - 23

JA 139

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-138,F2il2e8d70486/50,4P/1a7ge1P4a3geof82o9f710

A - 24

JA 140

   CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-138,F2i2le8d70486/50,4P/1a7ge1P4a4geof92o9f710   Ӯ‫ف‬प ʛࣙИ‫ݗڿ‬ֈƠĉӯ‫ࠁݘ‬प ऌप ‫ ͋ك࡭ق‬ӰːࠂӱU‫ل‬प ‫ۀ‬Йप К‫׺ہ‬प ˄Çߋߛप ࠃҿδ‫ݙ‬Ċप ࢹRWЗµࠄӀपࠅӁӲ‫ڼ‬प̠޹εप

Ѽ‫׻ۂ‬प ίթLप ࠆO‫ݜ‬kप

Ȣ֠‫ߜ׼‬प

҇‫ݚ‬

ࢺ´‫҈م‬प

̓ Ƨ͇͌ÈࢥŴप¼प ζ‫ܚ‬प ӂऍNप޺߾प Ѳप Þ¢ˑ\प ࣟप

ѭ‫ݛ࡮ۃ‬ӳѥЏŵप ժ‫࣠˒·ڰ‬Gप ˓‫ڻ‬प ࢦ˔‫ݝ‬ӴHप ࢻ­ࠇӃप ࡘի࡙࡚֡
प w‫߿޻ݏ‬प

 ȣ‫ࠈץ࡫ׯ‬òȚऎप ƨŶप ˕प ʌ˖ÜWप
‫ۅ‬Лप Ʃø_֤ࠋ࣡Ďप ࡦ˗प Ñ‫ݟ®ࡰݔ‬ηߝप

Aŝ‫̨ܡ‬ǭࠉӵրǮ֢ċप ҉प ѳ‫ݞ‬Ӷ֣प ࡱ‫ܢ‬प 1Ӆ
प ʍӸ‫ن‬ΰլप VМप ӆप

ˏࣽŔČƕठčҀӷցǨप Ҋप ࢼÐ‫࡯ۄ‬ҋӄࠊप è‫ه‬Pप ɋࡲप ࢧ̡!‫ڽ‬ѦАďप ͍‫و‬:

Ӈ֥Нप Ȥ‫ࠌ׽‬ZҌࠍߗࠎĐप ‫׌‬oप

ÉОप

ҍ/θ%ࠏप

ɔ̢/Ùߞ;प ȥ‫޼࡛ܣ׾‬Ӻւˋप

˘प ࡳ‫ڱ‬խ֏ծ‫֦҆׍‬प

*पӹGप BǕđǖ6ӻ‫ܙ‬ƪgप



‫̦ݡݠىۆ‬տš

ɠ‫΄ي˙ࠐݢݐ׿‬Ēप &֧Пप˚‫ܥܤ‬L~‫ً)ݣ‬Ҏप ʠ̩࣢ѧ΅˛प cप ࠑӈ˜ࠒप ‫؀‬ιߟप ȦɾŢ ͎êqप

ƢǗपपąΉٌēपW³‫ݤٍױ‬प`‫ܦ‬पȠࢨप ‫ߠَ͏؁¯ݥݎ‬प ࢽӼäपӉ‫ݦࡴۇ‬प ʁS‫ࢾۈ‬ţ Ʌएƫ˝Ȅҏɯप cप Ґŷप Жӽγ‫ں‬dप

˅प ‫ݧ‬$प

֨κΊґप ࢿKࠓӊ‫ݨ‬प ࠔӋλप ʜ‫ܧ‬ःप ֩μࡵ(РߡĔप Ѵ‫ͻݩ‬կ͆पˆX΋ߢ#प

ȧÿ͐‫ݪ‬Ӿ֪प ˞प ʲ͑‫ُۉ‬प ͒˟प ޽̣ࠕӿِप ࣀհ‫׏׎‬प ̪प νџξΈࡶˠ֫प ‫ݫۊ‬प ȨّփĕǯѵɼĖप ѕप ࣹࠖԀْपɎÊ֬Όप

͓U‫؂‬οߣप ѽ½प ÒӌLप ɮ
प ‫ۋ‬Сप ٓ‫͔ی‬Ÿप

ȩɿӍԁ‫ݬ‬Ԃ΍վߘýपप {पɕzÀΎėप

ɏࡷŒ޾ŕĀŹप ࢸ π‫ף‬þࣁԃࠗ प ͕̫ρࣣप Ɇ‫ܨ؃‬ƟǤ֍Ѯ^޿प ɰźप Ǽपʡ֭'ԄٔĘप ‫ݭ‬प ʢ‫֐ܛ‬M࠘Ť֑͊प ˡࡸप ȇ̬ì ȑࢤࡤप ˢTप æ0ٕԅ‫װ‬प,2QÓप ‫ܩ‬Ôςť -प ʸºࢩeप ͖-؄‫ٖ_ۍܪ‬प ࠙प Ѩ‫ݮ‬ˣˤप

ΆÉࡹÚप x͗ٗσߤप‫ݯێ‬पɱࣂτ֮ऐ8प

ɖυ‫ߥ̭ݰ‬ęप ƛȃࣃ‫ݱ‬प प ‫ݲ‬Бपʈ˥प ȪऑƬǹࡺ؅̮‫ݳ‬ǥ٘࡬Ěपɭप؆֯α‫̤א‬Ŧ

ऄ@؇3ÝձͼǘְěपҒŻप ʣ̯ࣤǳ֒͘पÞӎप ٙप ƣƭƮप ̰ËԆֱφप ࠚ‫ۏ‬ғχÜ¡ψ‫ݴ‬#प µ‫ې‬ٚĜप ӏԇÁH‫ݵ‬͙ٛωप

ࣄ‫ߦ֓ݶۑ‬प̱ࣥप ˁप ȅ*Ԉ\żप

Ɉ‫ےܫ‬Õԉࡻ؈प Ӑmप ˦ٜप ȫࣚŧ bप Ȭś͚‫ۓ‬؉Ԋप õऒɡŽ{पțֆ·ࡼ‫ݷ‬Тϊĝप žप

ȭ؊ĞğĠ؋ड3प Ư;प¢,Èࡽ‫עݸ‬Ѝप ͛R&ٝҔKप ओप प Dप ʎưƱ֔ࠛŨ 0पԋ‫ܬ‬ϋप F£°ٞȒ ،‫۔̧ܜ؍‬ǒǓप

औप ʹԌǾֲόप ҕԍࢪٟप ࠜ,पӑ
पȓEΏԎũ ʺ‫ࣅە‬प

ࠝप ˧٠ࣦप١Mġप

٢˨ֳߧप΂Уपʯۖߎ‫ݹ‬kप

Ȯ؎‫ݺܭ‬ԏ؏ࠞΐपप ˩प ɗࡾ٣ύÖûߨप Aǃs΁ߊࡿ̲͜Şؐղ߀9प ‫ݻܮ‬ЕTҖप

Bؑࠟ‫ݼ‬ҁۗó"प ɢ<प ۘ*Ԑ٤पۙç߁7प ʻώ‫ؒݽ‬Ģप éӒ(٥प प ǄǅǺԑࠠप ѩ‫׵ݾ‬प ßۚप јÖप ࢀ‫ܒ݋‬Æप˪पʖϏԒҗ¦͈ࢁƲüߩप

˫‫ܰܯ‬ϐˬߍƳҘģप D‫ݿ‬ԓ‫ײ‬٦ҙप

Ѷ‫ހ‬љ֕ߪप ‫ށ‬ӓϑप ɘϒ/lप

ɐ‫ނ‬Ìࢂ٧प əࢃћ7प Ñप‫¶ר‬ſप

ȯ‫׮‬Ԕ٨ࠡŖࠢiप ɣ8प Ф˭ؓۛࢄ߫ĤपϓࣛŪ ǧࠣԕۜŗप ɬƐप ̳`ࣧԖ٩Қ<प

ĥप Ȱढ‫۝»ބࣨރ‬Х4Αɲप қƀप ܱѝùԗ:

͝ɚϔ͞Ħप ϖࠥOϗߖmप

ܲ‫ݍ‬٪ࢅҜप ۞ࢫϕप अप

Cؔ‫ࣘڲݓ‬प ‫צ‬íप Ȕ ‫ޅ‬Yࢆܳࠤ֋प ۟ˮ۠ЦʂÂۡéִВҝЎप ϘࠦࣆЊK٫प ࠧ¤ϙप ȍ‫ކ‬Ϛ˯îˌप ٬प ȱħĨŚĩƑœ‫٭‬řҞࠨप ЧĪप 5प Ӕࢇ‫ࠩއ‬dप

Ȳؕքˉ7प ɤप ˰प wܴࣩƁप ۢÔप ࠪ࢈ϛ߬प ˱Шࠫ(Óप प ʤ¸ࢉߌ;प पΒ˲‫ٮؖ‬ԘЩ࣪प

 ʳ ࢊࠬīप ЪϜ‫͟ٯ‬प ̴‫ވ‬ÊH࠭ प ¥&‫މ‬प @ٰܵप ‫ފ‬3ǰֵप ʿ3˳ࢬ‫ھ‬प 9प 1ϝप uĬĭɳԙ࠮ƴѤ࠯‫࠰ٱ‬प ‫ދ‬प ֶ‫ٲ‬ΓԚࣿƂप

vϞࣇ߭पΔप ҽ࠱पɥ‫ڳ‬ïǵ±ҟÁ=प ӕԛҠP࠲࠳प ɛࢭप ˴͉ࢮप àQ
प

D‫ٳ‬प t͠͡ࢋњ࠴Ԝप ϟࣜ¦ԝऀ

ȳ‫ؗ‬ѷࢌԞۣşपकप ַ8प ‫׫‬ԟ‫ٴ‬Ԡ‫ٵ‬ҡप Ɍ°߂ճ‫ٶ‬ǻ‫͢ٷؘ‬Įप Ѹप ͣ˵प įप Ыߓ‫ؙ‬प ԡ࠵Гप àप ࠶PपɴࢍIҢ߮प Eңմ‫׶ܓ‬प

ۤࢎåƃप

࠷ӖϠप YԢण¡İप ș́ԣ‫ٸ‬Ԥ‫ٹ‬Ҥप ų‫ތ‬प ǫ‫ۥ‬êपʥM‫ލ‬ЬÌ‫ۦ‬पखƄप

ȴ‫ؚ‬ևZı࠸ԥۧŠǿɵnपԦ+ҥपæ࠹Ĳप Ѫ[࣫प ʗ˶ͽࢣYप Эप ԧ࠺प Ƕप ʼӗप ɇǙΕԨǚ࠻ĳप Ƶपͤƶԩ‫ٺ‬Ҧप ɜNØ̵ƅप

ܶ|ѡ‫ٻ‬ҧप ˷ࣈ|࣬=प

ʏ˸‫ ׳‬प ۨЮप ɑ‫ܝ‬प ȈÃҾָĴप ȵƖʀ‫ގ‬҂Ɔप ăƒप ͥप ࣉ!Ԫ2ϡप .‫ټ‬प

ȶߏԫ»β۩‫ٽ‬पյ‫ڴ‬प ʘ۪‫ޏ‬Ʒ̶࢏ߐ̷4‫ސ‬आप ˹‫پ‬Ζप ʴ'Ԭ‫ٿ‬Ûlप

ªϢप ̸˺ΗΘԭΙ
प Яप ˻प Ȑ‫גב‬प ‫ܠ‬प

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Ȝ‫=ޒ‬प ȝʙŘĵप ˼‫¸ד‬ϣΜप ʵͦ۬࠽ơप Νëप

इप

Bघsɶۭङ‫࡞؝‬ǆƸ࠾प бप 5Ӛ‫ۮ‬प ̈́

‫ۯ‬вप ࣊£۰‫؞‬प ͅю‫ܔ‬X>प

u‫؟‬Ķķʊ࠿԰۱ߙप ɷ$प ΞԱќ˽Բ‫ڃ‬: ѯ࣋Գ‫ڄ‬Ҩप .ͧप }‫_׭‬Դ‫څ‬ҩप ‫ܞ‬प ˾प

ȸ‫ؠ‬ĸѢ۲‫چ‬Ĺप ɧ>प ȹ‫ء‬Եࡀप ƹ<प ĂϦ‫ڇ‬ΟԷǉǊҫप -प˿Ąɟ‫ڈ‬Ҭप ѹ‫ޔ‬ӛƉप

նҪप ҃!࣌Զप ̹ͨͩ‫>ޕ‬प

áप

ϤࣝचЋप ‫ה‬प

ǬǇǈrŭ

ȡ࣍ϥ‫ޓ‬ƈप @ĺĻ‫ו;ࡪ݌‬4߯प ҭ?प ̀‫ډ‬प ́‫Ϳڊ‬շŮ

Ⱥ‫ࡁأآ‬âप Eप ʦԸļ‫ؤ‬Թ
Ľप ̂प A‫إ‬Ǜतƺǜ6ľपࣻ#प ¾ո‫¶ז‬Ժ+प‫ئ‬प ϧ‫\ڋ‬प ʧӜԻֻप ȕ۳ܸӝ!प ̃‫ڌ‬Gप ʨÏࡂप

ȉ‫ޖڍ‬Ɗप bप

Cö࢑ּ ߃‫ࡃڵ‬प ‫ࡄק‬Լ‫ڎ‬प ‫
ڹܘ‬प Çгप ۴дप ƚZҮ‫ޗ‬ԽǷ߄‫ا^ࡅڶ‬प ‫߅ݑޘ‬åϨΠप

Ȼ‫ب‬۵ˀԾ‫ة‬6"प‫ח‬Ɠप‫ت‬ǽ֖ԿÄ֌पѱеͪoप ‫ޙ‬प ͫ࣎.प ‫ث‬Հ‫ڏ‬प ȏ‫ޛڐ̄ޚ‬O߰प ۶жप ]पप ͬ¤प ɨ‫ࢶڷ‬ϩ‫ޜ࡟ڸ‬पVзपʰ̺ì

ȼ‫ج‬۷ֽǝ‫ح‬4‫ڑ‬6प ƻ$प ʩ‫ޝ‬۸ѫãĿप ß§bप Rप ‫ת‬Ë࣏प ˂Ձ‫ڒ‬ŀप ࣐ӭ)¨प ࡆ ‫ޞ‬Ղͭ֗प

ɒƼՃ‫ړ‬प Łप ȊΡࢯ~Âࡣ'үप Ȁप ̅‫ࣺפ‬प Ұ۹Ϫ߱प ͮ‫ۺ‬प‫ޟ‬¥पʱϫ²߲pप

Cł։࣮ʐ‫خ‬fप &पy©
ܹӞJप Ƥࣾप

ʑՄ‫יט‬ů2Í‫כך‬प

ɉ࢒‫ˊ־‬ƥǞप ɩप Ãëप ֘®‫ڔ‬΢पÎиप ȖǦ‫ޠ‬ՅǟŃप ࣑ӟ‫ۻ‬प Ѿ΃¾प ӠՆ߳प ʝñँ

Ƚ‫د‬छÝՇ‫ڕۼ‬प9प ࣼप ȞϬйܺप ̆Ո‫ޡ‬प xϭͯࡧप ̻‫࣯̇ޢ‬ДपՉ‫ږ‬प ˇ̈‫!Ͱޣ‬ńप ǋǌΣप кÐࢰ̉थ²Î‫ڗ‬प ‫۽‬лपࡇªप ȗ ̊‫ޤ‬мͱप -нप

࢓‫̼࢔۾‬¹Ϯप оप ʒ­Τप gप ࢕ܻhप ¿‫ࢱ܀‬Ս‫ښ‬ҲपÍ࢖ࡋप

ǩजप³ߕ´Sұप

я‫ל‬0zՊपՋ(Υप ࡈ प ͲQप F ÄѬѐ‫ם‬+ͳϯप ‫܁‬пपȋपð‫ڛ܂ذ‬Φप ʔՎ‫׬׀‬ȁप %ׁрƙप̋ࣰप

ࡉӡप ʓ‫ژۿ‬प ‫ڙ‬प ʪֿࡊߴप Ռߵप ‫ܼޥ‬çࡥϰΧप ࡌप Ȍࢗ5Ӣ‫܃‬प сप tं

Ⱦ‫ـ‬Ǳչ߆प Ņप тqप प Ǐ‫̍ر‬ҳϱप ‫֛̏ش‬पĈާфϴņप Uप ΨՒ*ՓÅՔʟप

֙Տ‫ڜ‬प ɝ࢘‫ص‬

‫܄‬уप Șަϲ̎‫ز‬eप ࢙×pप

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A - 25

սőͺ‫ڭ‬ऋǲࡗէܑŜ ɫƏपࣗЉ̥֟‫ڮ‬ը‫گ‬Ҽप

JA 141

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A - 26

JA 142

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APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

JA 143

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A - 27

JA 144

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A - 28

JA 145

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A - 29

JA 146

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A - 30

JA 147

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A - 31

JA 148

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A - 32

JA 149

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A - 33

JA 150

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A - 34

JA 151

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A - 35

JA 152

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A - 36

JA 153

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A - 37

JA 154

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A - 38

JA 155

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A - 39

JA 156

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0418F, 2ile2d870486/054, /P1a7geP1a6g0eo1f 529o7f 17

A - 40

JA 157

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0418F, 2ile2d870486/054, /P1a7geP1a6g1eo1f 629o7f 17

A - 41

JA 158

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0418F, 2ile2d870486/054, /P1a7geP1a6g2eo1f 729o7f 17

A - 42

JA 159

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-158,F2il2e8d70486/50,4P/1a7ge1P6a3geof12o9f712
APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

JA 160

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A - 43

JA 161

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A - 44

JA 162

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A - 45

JA 163

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-158,F2il2e8d70486/50,4P/1a7ge1P6a7geof52o9f712

A - 46

JA 164

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-158,F2il2e8d70486/50,4P/1a7ge1P6a8geof62o9f712

A - 47

JA 165

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-158,F2il2e8d70486/50,4P/1a7ge1P6a9geof72o9f712

A - 48

JA 166

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-158,F2il2e8d70486/50,4P/1a7ge1P7a0geof82o9f712

A - 49

JA 167

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-158,F2il2e8d70486/50,4P/1a7ge1P7a1geof92o9f712

A - 50

JA 168

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0518F, 2ile2d870486/054, /P1a7geP1a7g2eo1f 029o7f 12

A - 51

JA 169

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0518F, 2ile2d870486/054, /P1a7geP1a7g3eo1f 129o7f 12

A - 52

JA 170

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0518F, 2ile2d870486/054, /P1a7geP1a7g4eo1f 29o7f 12

A - 53

JA 171

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P7a5goef 129o7f 9
APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

JA 172

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P7a6goef 29o7f 9

A - 54

JA 173

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P7a7goef 329o7f 9

A - 55

JA 174

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P7a8goef 429o7f 9

A - 56

JA 175

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P7a9goef 529o7f 9

A - 57

JA 176

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P8a0goef 629o7f 9

A - 58

JA 177

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P8a1goef 729o7f 9

A - 59

JA 178

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P8a2goef 829o7f 9

A - 60

JA 179

CaCsaese1:187-4c7v-40,0D4o5c8u-GmBenDt 2D6-o1c,u0m4e/2n4t/4280-168, 2F2ile8d740685/0, 4P/a1g7e1P8a3goef 929o7f 9

A - 61

JA 180

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P8a4geof12o9f710
APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

JA 181

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P8a5geof22o9f710

A - 62

JA 182

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P8a6geof32o9f710

A - 63

JA 183

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P8a7geof42o9f710

A - 64

JA 184

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P8a8geof52o9f710

A - 65

JA 185

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P8a9geof62o9f710

A - 66

JA 186

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P9a0geof72o9f710

A - 67

JA 187

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P9a1geof82o9f710

A - 68

JA 188

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-178,F2il2e8d70486/50,4P/1a7ge1P9a2geof92o9f710

A - 69

JA 189

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0718F, 2ile2d870486/054, /P1a7geP1a9g3eo1f 029o7f 10

A - 70

JA 190

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge1P9a4geof12o9f712
APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

JA 191

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge1P9a5geof22o9f712

A - 71

JA 192

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge1P9a6geof32o9f712

A - 72

JA 193

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge1P9a7geof42o9f712

A - 73

JA 194

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge1P9a8geof52o9f712

A - 74

JA 195

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge1P9a9geof62o9f712

A - 75

JA 196

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge2P0a0geof72o9f712

A - 76

JA 197

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge2P0a1geof82o9f712

A - 77

JA 198

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-188,F2il2e8d70486/50,4P/1a7ge2P0a2geof92o9f712

A - 78

JA 199

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0818F, 2ile2d870486/054, /P1a7geP2a0g3eo1f 029o7f 12

A - 79

JA 200

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0818F, 2ile2d870486/054, /P1a7geP2a0g4eo1f 129o7f 12

A - 80

JA 201

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0818F, 2ile2d870486/054, /P1a7geP2a0g5eo1f 29o7f 12

A - 81

JA 202

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P0a6geof12o9f726
APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

JA 203

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P0a7geof22o9f726

A - 82

JA 204

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P0a8geof32o9f726

A - 83

JA 205

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P0a9geof42o9f726

A - 84

JA 206

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P1a0geof52o9f726

A - 85

JA 207

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P1a1geof62o9f726

A - 86

JA 208

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P1a2geof72o9f726

A - 87

JA 209

CaCsaes1e:1178--c4v7-40,0D45o8c-uGmBeDnt 2D6o-1cu, m04e/n2t44/280-198,F2il2e8d70486/50,4P/1a7ge2P1a3geof82o9f726



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Г೦BBЃࣶࣳࣸਹ}਻Ƭಗ|ˊ૤૎೦،Щˋˌƭ‫̠ڊ‬೦Şକҳè೦೦఼Ҭη˅ƞ̞ؔ×೦ƍ‫ޱ‬ҭՇಖ೦ҹ೦ۖ¨࡭؏˂һñউఏ૑ߊ̜ؐΝ೦૏ૌ೦̟Զ͡ӣД‫ ڜ‬೦‫ޘ‬૒ٗ‫֎ޔ‬ૐؑ೦࡬৭[С೦ǈОҮ‫ޒ‬೦ű೦Ċ‫੄۔‬ϐ ೦ӠఐЪఓ૥үΕঘۗ૓ய‫ޙ‬ঊ೦Ի٤Ҵலˍ‫ޕ‬ৱ৪೦©޾٩³޺‫ٳ‬౦೦Γ఑೦ ٙ͞ˎ̱Ó˔ழ೤೦೦



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APPENDIX B:
“EMOLUMENT” IN LEGAL DICTIONARIES, 152 -1792

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Table 2: Definitions of “Emolument” in Legal Dictionaries, 1523-1792

Author
1 Rastell, John/William
2 Cowell, John 3
Leigh, Edward
4 Sheppard, William
5 Spelman, Henry
6 Blount, Thomas

Title
Exposiciones terminorum legum anglorum (Les Termes de la Lay)
The Interpreter

1st ed.
152 1607

A Philologicall Commentary
An Epitome of All the Common & Statute Laws of This Nation Now in Force

1652 1656

Glossarium archaiologicum

1664

Nomo-Lexicon

1670

Image

Definition

1st ed. 152 no definition

1st ed. 1607 no definition 2d ed. 1658 no definition

1st ed. 1656 no definition

1st ed. 1664 no definition 2d ed. 1691 no definition

7 Jacob, Giles

A New Law Dictionary 1729

1st ed. 1729 no definition

8 Cunningham, Timothy
9 Kelham, Robert
10 Burn, Richard

A New and Complete Law-Dictionary
A Dictionary of the Norman

1764 1779

A New Law Dictionary 1792

1st ed. 1764 no definition 1st ed. 1779 no definition 1st ed. 1792 no definition

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Table 3: Other Uses of “Emolument” in Legal Dictionaries, 1523-1792

Author

Title

Blount, Thomas Nomo-Lexicon

1st ed. Image Other Uses of Emolument

1670

2d ed. 1691 used to define "Maritima Angliae"

Jacob, Giles
Cunningham, Timothy Burn, Richard

A New Law Dictionary
A New and Complete LawDictionary
A New Law Dictionary

1729 1764 1792

1st ed. 1729

used to define "Maritima Angliae”
used in a sample orm or h r as and on an o ands

used to define "Apportum" 1st ed. 1764
used to define “Maritima Angliae”

1st ed. 1792 used to explain “Isle of Man”

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Transcripts of Legal Dictionary Definitions and Other Uses, 1523-1792

1) THOMAS BLOUNT, NOMO-LEXICON (2d ed. 1691).

Maritima Angliae, the Emolument arising to the King from the see, with Sheriffs anciently collected, but was afterwards granted to the Admiral. Pat. 8. Hen. 3. In. 4. Richardus Lucy dicitur babere Maritimam Angliae.

2) GILES JACOB, A NEW LAW DICTIONARY (1st ed. 1729).

Maritima Angliae, The Profit and Emolument arising to the King from the Sea, which anciently was collected by Sheriffs; but it was afterwards granted to the Lord Admiral. Richardus Lucy, dicitur babere Maritimam Angliae. Pat. 8. H. 3. M. 4.

[Sample conveyance stock language] This indenture made, &c. Between A.B. of, & c. of one Part, and CD. Of, & c. of the other Part, Witnesseth, that the said A.B. for and in Consideration of the Sum of Five hundred Pounds of lawful Money of Great Britain, so him in hand paid by the said C.D. the Receipt whereof the said A.B. doth hereby confess and acknowledge, and for other good Causes and Considerations him therento moving, be the said A.B. hath granted, bargained and sold, aliened, released and confirmed, and by these Present doth fully, freely, and absolutely grant, bargain and sell, alien, release and confirm unto said C.D. (in his actual possession now being, by Virtue of a Bargain and Sale to him theretof made for one Year, by Indenture hearing Date the next before the Day of the Date of these Presents, and by the Force of the Statute for transferring of Uses into Possession ) and to his Heirs and Affirm, for ever, All that Message or Tenement, & c. with the Rights, Members, and Appurtenances thereof situate, lying and being in, &c. And all Houses, Edifices, Buildings, Gardens, Orchards, Lands, Meadows, Commons, Pastures, Feedings, Trees, Woods, Underwoods, Ways, Paths, Waters, Easements, Profits, Commodities, Advantages, Emoluments, and Hereditaments whatsoever to be said Message or Tenement belonging, or in any way appertaining …

3) TIMOTHY CUNNINGHAM, A NEW AND COMPLETE LAW-DICTIONARY (1st ed. 1764).

Apportum, Seems to be deduced from the French apport, and signifies

the revenue, gain, or profit, which a thing brings in to its owner. It is also

used for an augmentation given to any abbot, for his better support out of

the profits of a manor—ita quod proficua manerii predicti apporti qualibet

anno prefato A. in subventinum sustentationis sine solverantor. Ann. 22

Ed. 2. N. 72. Line. The word was commonly used for a corrody or

pension:--Nicolaus Gwun prior de Andover, debt xx macron de quodam

apporto, ad capitalem dominum ejusdem prioris in partibus transmorinis,

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in tempore paci debito. Ex register Evidentiarum Colleg. Wickham. Jucta Winton. MS.—Rex Edwardus 3. Restituit terras prioratum aliengigenarum salve nobis apporto, quod prasectus procurator alicai domain superiori salvere tenetur. Cianf. 14. Ed. 3. The word misht at fist signify any profit or emolument apported or brought to another; and therefore Du Fresene observes in which the Customary of Rhemes, apport was the portion which the wife brought to the husband.
Maritima Angliae, The emolument arising to the King from the sea, which sheriffs anciently collected; but was afterwards granted to the admiral. Pat. 8. Hen. 2. M. 4. Richardus de Lucy dicitur babere maritimam Angliae.
4) RICHARD BURN, A NEW LAW DICTIONARY (1st ed. 1792)
Isle of Man, is a distinct territory from England, and is not governed by our laws; neither doth any act of parliament extend to it, unless it be particularly named therein. It was formerly a subordinate feudatory kingdom, subject to the kings of Norway; then to the kings of England; afterwards to the kings of Scotland; and then again to the crown of England; and was finally granted, by the king James the first, to William Stanley earl of Derby, and the heirs male of his body, with remainder to his heirs general; which grant was confirmed by an act of parliament, with a restraint of the power of alienation by the said earl and his issue male. On the death of James ear of Derby in the year 1735, the male line of earl William failing, the duke of Athol succeeded to the island, as heir general by a female branch. In the mean time, though the title of king had long been disused, the earls of Derby, as lords of Man, had maintained a sort of royal authority therein; which being found inconvenient for the purposes of public justice, and for the revenue, (it affording a commodious asylum for debtors, outlaws, and smugglers,) authority was given to the treasure, by statute 12 G.c.28. to purchase the interest of the then proprietors for the use of the crown; which purchase was at length completed in the year 1765, and confirmed by the statutes 5 G.3.c.26 & 39. whereby the whole island, and all its dependencies, (except the landed property of the Athol family, their manerial rights and emoluments, and the patronage of the bishopric and other ecclesiastical benefices,) are unalienably vested in the crown, and subjected to the regulations of the British excise and customs. 1 Black. 105.

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A - 101

JA 223

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0918F, 2ile2d870486/054, /P1a7geP2a2g7eo2f 29o7f 26

A - 102

JA 224

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0918F, 2ile2d870486/054, /P1a7geP2a2g8eo2f 329o7f 26

A - 103

JA 225

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0918F, 2ile2d870486/054, /P1a7geP2a2g9eo2f 429o7f 26

A - 104

JA 226

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0918F, 2ile2d870486/054, /P1a7geP2a3g0eo2f 529o7f 26

A - 105

JA 227

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-0918F, 2ile2d870486/054, /P1a7geP2a3g1eo2f 629o7f 26

A - 106

JA 228

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-01108, 2F2ile8d740685/0, 4P/a1g7e2P3a2goef 129o7f 14
APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

JA 229

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A - 107

JA 230

CasCeas1e:1178-c-4v-7040,4D5o8c-GumBeDnt D26o-c1u,m0e4n/2t44/82-01108, 2F2ile8d740685/0, 4P/a1g7e2P3a4goef 329o7f 14

A - 108

JA 231

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A - 109

JA 232

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A - 110

JA 233

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A - 111

JA 234

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A
$ e t o attD Complete 3UVO^©tctionarp,
o R,
GENERAL A B R I D G M E N T of the L A W :
O N A more Extenfive Plan than any L A W - D I C T I O N A R Y hitherto published ;
CONTAINING
Not only the E X P L A N A T I O N O£ the T E R M S , but alfo the L A W itfelf, both with Regard to ^Theory and PraSIke.
Very Veful to B A R R I S T E R S , J U S T I C E S OF- T H E P E A C E , A T T O R N I E S , '
S O L I C I T O R S , &C.

!By T. C U N N I N G H A M, Efq.

In T W O

VOLUMES.

V O L. I.

LONDON: Printed by the Law-Printers to the King's moft Excellent Majefty j For S. CROWDER. at the Looking-Glafs, and J COOTE at the KingVArms, in Paternofter-Rott; And fold by Mr SMITH at Dublin, Mr. JACKSON at Oxford, Mefl*. FLETCHER and HDDSOJ* at Cambridge, Mr. ETHERINCTON at York, and all other Bpokfellers in Great Britain and Ireland.
M. DCC LXIV.

A - 112

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A P P

A P P

part of the land, the rent (ball be apportioned; but a rent- ihey cannot be divided by the act of the party ; fuch «a

charge cannot be apparttantd, nor things that are inttre j warranties, conditions, &c. tho' they may be apportioned

as if one holds land by fervice, to pay to his lord yearly by aft of law, but commons are not fo ftndtly inure*

at fuch a feaft, a horfe, or a rofe, there, if the lord but that they may be apportioned, it being a common

purchafe part of the land, this fervice is totally extinct, cafe, and therefore ought to be extended for the general

becaufe fuch things cannot be divided without hurt to the good Hob. 235

whole ; yet in fame cafes M rent-charge (hall be apporti- Conditions, generally fpeaking, are intire, and cannot be

oned, as if a man hath a rent-charge ifliiing out of land, apportioned by the aft of the parry} as for inftance, the and his father purchafeth part of the land charged in fee, mafter and fcholars of Corpus Chrijlt in Oxford, made a

and diea, and thi9 parcel defcends to his fort, who hath leafe of lands, provtfo, the leflee (hould not alien, E£r. the rent-charge; there this charge (hall be apportioned, without fpecial licence, afterwards they gave the leftce a

according to the value of the land, becaufe fuch portion fpecial licence to alien, who afEgned his term to B B. of the land, purchafed by the father, comes not to the and he by will devifed the lands to his fon, and the leflbr

fon by his own act, but by Jefcent and courfe of law entered for the condition broken ; adjudged, that the liCommon appendant is of common right, and feverable, cence given to B B to alien, had deftroyed the condition,

and though the commoner, in fuch cafe, purchafe parcel fqr the leflbrs would not difpenfe with it, as to him, and of the land, wherein the common is appendant, yet the retain it, as to others; for a condition being an intire

common (hall be apportioned; but in this cafe, common thing, cannot be apportioned by the aft of the party» appurtenant, and not appendant, fay fuch purchafe is ex- tho' it may be by act of law. 4 Rip. 119. Damport's

tinct Termis dt la ley 8 Co. 79.

cafe

Where the leflbr recovers part of the land; or enters An agreement in writing between the teftator and J S.

for a forfeiture into part thereof, the rent (hall be ap- that he (hould receive all the teftator's rents, for which

portioned 1 Inft 148

fervice he promifed to pay y . 5 100/. ptrann and in an

Leflee for years lealcs for yeafa, rendnng rent, and action of debt brought againft the executor, the plaintiff

after devifes tins rent to three perfons, this rent may be fet forth, that the teftator died three quarters of a year

apportioned. Danv. Abr. 505.

after this contract made, during which time the plaintiff

If a lefTee for life or yean under rent, furrenders part of the land, the rent (hall be apportioned but where the grantee of a rent-charge purchases part of the land, there all is extinct Mm, c 231.
A rent-charge uTuing out of land, may not be apportioned, nor (hall things entire; as if one holds lands by fervice to pay yearly to the lord, at fuch a feaft, a horfe, &c 1 fo/l. 149.
But if part of the land out of which a rent-charge iflbes, defcends to the grantee of the rent, this (ball be apportioned Danv 507

ferved him, and fo demanded 75/, for his fervice for three quarters of a year, the defendant pleaded to lflue, and the plaintiff had a verdict and judgment in C B. but upon a writ of error brought in.fi R it was reverfed, becaufe this agreement was in nature of a condition precedent, and that nothing was due without a full year's, fervice; 'tis like a leafe for years, rendnng 20/ rent yearly, and before the year is ended, the leflee is evifted, the leflbr (hall have no rent, for that cannot be apportioned in refpect of time. 1 Salk 65 Countefs of Plymouth verf. Tbrogmortm See 2 Salk 778 the pleadings.

A grantee of a rent releafes part of the rent to the <9pp0^tttm, Seems to he deduced from the French

grantor, this dotli not extrnguifh. the refidue, but it (hall apport, and fignifies the revenue, gain or profit, which a

be apportioned, for here the grantee dealeth not with the thing brings in to its owner It is alfo ufed for an aug-

land, but with the rent. Co Lit. 148.

mentation given to any abbot, for his better fupport out

On partition of lands out of which a rent is ifluing, of the profits of a manor. ha quod proftcua manna

the rent (hall be apportioned. Dam. Abr. 507.

prozditlx nomine apport1 quohbet aumpr&fato A. mfubven-

And where lands held by leafe, rendnng rent, are ex- Uonem fujfentattants fax foherentur Ann 22 Ed 3 n 72.

tended upon elegit, one moiety of the rent (hall be ap- Line The word was commonly ufed for a corrody 01

portioned to the leEor. Danv. Abr. 509.

penfion:• Nicolaus Gvuyn prior de Andauer, debet xx

If part of the land leafed is furrounded by frefh water, marcas de quodam apporto, ad capitalem damnum tjufdem

there (ball be no apportionment of rent; but if it be fur-prions in partibus trenfmartrut, in tempore pacts dtfnto. Ex

rounded with the fea, there (hall be an apperttantnent ofregtftro evidtntiarum colltg Wtckbam juxta Wintm MS—

the rent. Dyer 56.

Rex Edwardus 3. rejlituit terras prieratuum altenigenarum

A man purchafeth part of the land where be hath com- falvo nobis apporto, quod prafcQus procurator altcui dnmui

mon appendant, the common (hall be apportioned; of fuperiort folvere tenetur Clauf 14 Ed. 3 The word

common appurtenant it is otherwife, and if by the ait of might at firft ligmfy any profit or emolument apportid

the party, the common is extinct: 8 Rep, 79.

or brought to another; and therefore Du Frefne obferves

Common appendant and appurtenant may az apportioned in the Cuftomary of Rbtmts, apport was the portion which

on alienation of part of the land to which it is appendant the wife brought to the hufband.

or appurtenant. Wood's Inft. 199.

ajrpflfal M tymffe, The charging them with money

If where a perfon has common of pamire fan* num- received upon their accounts in the Exchequer It is ufed

ber, part of the lands defcends to him, this being intire in flat. 22 IS 23 C. 2.

and uncertain cannot \x apportioned; but if it had been japmaiteOS Of goods are to be fworn to make true

common certaio, it fhould have been apportioned. 1 Inft. approvement, and if they value the goods too high, tbey

149.

(ball be obliged to take them at the price appratfed. Stat.

A contract may not be divided or apportioned, to as to 13 Ed I,

fubject a man to two actions. 1 Sulk. 65.

£npf£ntyC (Fr.) A fee or profit, apprendre is a fee or

Common appendant may be apportioned, becaufe 'tis opf rofit to be taken or received. It is ufed .in fbtute

M W right, and therefore, if a man purchafe part of the 2 £s* 3 Ed. 6 c 8.

lands to which the common ts appendant, the common (hall beApprentice, Apprentuius, (French apprtntif, -from apapportioned to that part; but cemeun appurtenant cannotprendre, to learn ; whence the French apprenttffage, and

he apportioned by the a£t of the party, and therefore by our apprentuoftnp) Signifies with us one that is bound the purchafe of part of the lands, the whole common 19 in word or writing, to fcrve another man of trade for

extinct. 4 Rep. Yerringbtuit* cafe. 8 Rtp. 79. Hoi. certain years, upon condition that the artificer or mafter

a j . S P.

(hall in that mean time endeavour to tnftrufl him in his

And yet it bath been adjudged, that where a man art or nuflery. Smith de Rep. Aag itb. 3, tap. 8. faith,

hath twntmm mppnrttnant to ten acres of land, for all histbey are a kind of bondmen, dtfiering only, that they are

beafia /react and emebant on the fame, and afterwards fervanti by covenant* and for a tune Barrifbra at law

he fella fait of thofe ten acres, that the common (hill were heretofore called apprentices of the law, m latin

be appottioned, and the vendee flull have common on apprentmijuris mbilarts. So faith Mr Selden in his note*

that part which he purchafed , for tfaefe things are mure upon Parte feme, p. 3. and fo the learned Mr. Piewdtn,

infever*!dene*, (u ,.) ferns thing» an; b jnttre, that (tiled himEdf. Sir Henrj finch, in his Nemfttcbnta, givea

Vat. L N". is.

I Mm

himfclf

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A - 114

JA 237

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A - 115

JA 238

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A - 116

JA 239

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A - 117

JA 240

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A - 118

JA 241

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A - 119

JA 242

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APPENDIX A:
“EMOLUMENT” IN ENGLISH LANGUAGE DICTIONARIES, 1604-1806

1BSUPG A - 1

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A - 120

JA 244

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APPENDIX C:
“EMOLUMENT” IN SYNONYMY DICTIONARIES, 1748-1813

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Explanations of “Emolument” in Synonymy Dictionaries, 1748-1813

ABBÉ GIRARD
SYNONYMES FRANÇOIS, LEURS DIFFERENTES
SIGNIFICATIONS, ET LE CHOIX QU’IL EN FAUT FAIRE POUR
PARLER AVEC JUSTESSE
(New ed. 1748)

JOHN TRUSLER
THE DIFFERENCE BETWEEN WORDS,
ESTEEMED SYNONYMOUS, IN
THE ENGLISH LANGUAGE; AND THE PROPER CHOICE
OF THEM DETERMINED
(1st ed. 1766)

HESTER PIOZZI
BRITISH SYNONYM; OR AN ATTEMPT
AT
REGULATING THE CHOICE OF
WORDS IN FAMILIAR CONVERSATION
(1st ed. 1794)

WILLIAM TAYLOR
ENGLISH SYNONYMS
(1st ed. 1813)

Gain. Profit. Lucre. Emolument, Benefice.

Gain, Profit, Lucre, Emolument.

No mention of emolument.

No mention of emolument.

Le gain semble être quelque chose de très casuel, qui suppose des risques & du hazard, voilà pourquoi ce mot est d’un grand usage pour les Joueurs & pour les Commerçans. Le profit paroit être sûr, & venir d’un rapport habituel, soit de fonds, soit d’industrie, ainsi l’on dit les profits de jeu, pour ceux qui donnent à jouer ou sournissent les cartes; & le profit d’une terre, pour exprimer ce qu’on en retire outre les revenus fixes par les baux. Le lucre est d’un stile plus soutenu, & don’t l’idée a quelque chose de plus abstrait & de plus general; son caractère consiste dans un simple rapport à la passion de l’intérêt, de quelque manière qu’elle soit satisfaite: voilà pourquoi l’on dit très bien d’un homme, qui’il aime le lucre; & qu’en pareille occasion on ne se serviroit pas des autres mots avec la même grace. L’émolument est affecté aux charges & aux emplois; marquant non seulement la finance règlée des appointemens, mais encoure tous les autres revenant-bons. Bénéfice ne se dit guères. Que pour les Banquiers, les Commissionaires, le change & le produit de l’Argent; ou dans la Jurisprudence pour les héritiers, qui craignant de trouver un succession surcharge de dettes, ne l’acceptent que par benefice d’inventaire. Quelques rigoristes ont déclaré illicite tout gain fait aux jeux de hazard. On nomme souvent profit ce qui est vol. Tout ce qui n’a que le lucre pour objet est roturier. Ce n’est pas toujours où il ya le plus d’émolumens que se trouve le plus d’honneur. Le benefice qu’on tire du changement des monnoies, ne répare pas la perte réelle que ce derangement cuase dans l’Etat.

Gain, seems to arise from something very casual; and implies, risk and hazard; it is for this reason, the word, is in great use among gamesters and tradesmen. Profit, appears to be more sure; proceeding either from lands or industry. Thus, we say, the profits of the earth; or, the profits of our labour. The characteristic of lucre consists in a simple relation to the passion of interest; ‘tis on this account, we say, with the greatest propriety, that man is fond of lucre. Emolument relates to commissions and employments; intimating, not only the salaries, but, all other perquisites. Some persons are so particularly rigid, as to condemn all gain, arising from play. Many will, idly, call that profit, which has accrued by illicit means. It is low and sordid, to be ever led by lucre. We do not, always, find the greatest honour, in offices, where there is the greatest emolument.

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A - 123

JA 247

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A - 124

JA 248

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A - 125

JA 249

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A - 126

JA 250

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A - 127

JA 251

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A - 128

JA 252

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A - 129

JA 253

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A - 130

JA 254

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A - 131

JA 255

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t240918,F2il2e8d70486/50,4P/1a7geP25a9geof12o9f77
JA 256

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t240918,F2il2e8d70486/50,4P/1a7geP26a0geof22o9f77
JA 257

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t240918,F2il2e8d70486/50,4P/1a7geP26a1geof32o9f77
JA 258

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t240918,F2il2e8d70486/50,4P/1a7geP26a2geof42o9f77
JA 259

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t240918,F2il2e8d70486/50,4P/1a7geP26a3geof52o9f77
JA 260

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t240918,F2il2e8d70486/50,4P/1a7geP26a4geof62o9f77
JA 261

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t240918,F2il2e8d70486/50,4P/1a7geP26a5geof72o9f77
JA 262

CCaassee11:187-4-c7v4-,0D0o4c5u8m-GeBnDt 26D-1o,c0u4m/2e4n/t250118,F2il2e8d70486/50,4P/1a7geP26a6geof12o9f76

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC. JILL PHANEUF, and ERIC GOODE

Plaintiffs, v.

Civil Action No. 1:17-cv-00458-RA DECLARATION OF JAMES MALLIOS

DONALD J. TRUMP, in his official capacity as President of the United States of America,

Defendant.

DECLARATION OF JAMES MALLIOS

I, James Mallios, submit this declaration to describe two of my restaurants in New

York City, which I believe compete with some of Defendant’s restaurants and to describe some

of the business they do with government officials. The statements in this declaration are based

on my personal knowledge.

1. I am the managing partner of several restaurants in New York City, including

Amali and Amali Mou.

2. I consider certain of Defendant’s restaurants in New York City to be competitors

of Amali and Amali Mou because his restaurants are located just a short cab ride from Amali and

Amali Mou, and have similar prices, quality and reputations as my two restaurants.

3.

Diplomats, other officials of foreign states, and officials of the United States

and various states have regularly dined at Amali and Amali Mou.

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Amali 4. Amali is located in the Upper East Side at 115 E. 60th Street. The restaurant is less than a ten-minute walk from Trump Tower and a fifteen to twenty-minute walk or a tenminute taxi or Uber ride to Trump International Hotel. I believe Amali competes for business, including government business, with Trump Grill in the Trump Tower and with Nougatine in the Trump International Hotel. I believe it also competes with the Trump Tower Atrium, the Trump Grill, and the Trump Bar, all in the Trump Tower, and with Nougatine and Jean-Georges, both in the Trump International Hotel, for corporate, government and transient event and meeting business. 5. There are approximately 118 government buildings, both foreign and domestic, within a two-mile radius of Amali, including 106 consulates, one federal government building, one state government buildings, eight municipal buildings, and the United Nations Headquarters. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments. 6. Amali is an approximately 3500 square foot restaurant dedicated to economically sustainable sourcing that features seasonal Mediterranean cuisine with an emphasis on vegetables, olive oil, cheese, grains, and fish. The tables and all of the surface wood in the restaurant are made from 150-year-old pine taken from the ceiling of the restaurant during renovations. All of the other wood used in the restaurant, from the ceiling to the menu boards, is repurposed from New York buildings. The space is detailed in steel and reclaimed pine with minimalist lamps made by local artisans and menus fastened to wooden boards with metal strips. 7. Amali’s Executive Chef Dan Ross-Leutwyler joined Amali in Spring 2016. Previously, he earned two stars from the New York Times as Executive Chef of Fatty ‘Cue with Zak Pelaccio. He was Sous Chef at Roberta’s when the restaurant received its first rating from the New York Times. Before coming to Amali, Chef Dan opened the critically-acclaimed Fritzl’s Lunch Box in Bushwick.
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8. The restaurant serves dinner seven days a week, lunch Monday through Friday, and brunch Saturday and Sunday. Brunch entrees range from $18-$28; lunch from $19-$29; and dinner from $21-$36, although some items fluctuate with market prices. The restaurant also has an extensive wine list with over 400 selections. The wine list has been called “daring” by the New York Times, and Adam Platt of New York Magazine named Amali’s wine selection “one of the best Mediterranean selections in Midtown.”
9. The restaurant also offers catering and space for private events. Amali frequently hosts private events and has hosted many political and governmental organizations including the United Nations, the U.S. State Department, the Democratic Senatorial Campaign Committee, and the Democratic National Committee. There are four spaces available for private events.
10. One of Amali’s event spaces is the Fireplace Room, which features a large wooden table, large wooden doors, and large black and white photographs. It seats 18-22 guests and can accommodate 35 guests for a standing reception. The room fee is $200. The minimum for a lunch is $750 and the minimum for a dinner is $1,500.
11. The Skylight Room is available for private events. The room has twelve-foot ceilings and an eighteen-foot high skylight. The Skylight Room seats 25-40 guests and can accommodate 65 guests for a standing reception. The room fee is $300. The lunch minimum is $1,250. The dinner minimum is $2,500.
12. Sopra is available for private events. Sopra is a converted loft apartment that features an open kitchen and seats 20-30 guests and can accommodate 40 guests for a standing reception. The room fee is $300. The lunch minimum is $1,250. The dinner minimum is $2,500. Wine and Spirits Magazine describes the Sopra as having the feel of “an upscale bistro in Kolonkaki.”
13. The Sopra Chef’s Table is available for private dinner events. It can seat approximately 20 guests. The room fee is $400. The dinner minimum is $3,000.
14. The Sopra and Fireplace Rooms can be rented together for private events. Together, the rooms can seat 45-65 guests and can accommodate 95 guests for a standing
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reception. The room fee is $600. The lunch minimum is $2,500. The dinner minimum is $5,000.
15. The entire restaurant can also be rented out for private events. It can seat 150 guests and accommodate 200 guests for a standing reception. The room fee is $1,000.
16. The room fees for all private event spaces includes personalized menus, floral arrangements, and name cards.
17. I believe each of these event spaces competes for corporate, government, and transient meeting and event business with the event spaces in Jean-Georges, Nougatine, the Trump Tower Atrium, the Trump Grill, and the Trump Bar.
18. Online ratings demonstrate Amali’s success in the New York restaurant market. Nymag.com rates Amali a 9 out of 10. Both Google.com and Opentable.com give Amali at 4.2 out of 5 stars. Eater.com listed Amali on its list of 38 Essential New York Restaurants and noted that Amali serves “one of the city’s top brick chickens, and the seafood, pasta dishes, and charcuterie are just as good.” Zagat.com describes Amali as a “wine destination on the East Side” and describes that food and wine list as “fantastic.”
Amali Mou 19. Amali Mou is located in Midtown at 230 Park Avenue. Amali Mou is under a fifteen-minute walk to Trump Tower. I believe Amali Mou competes with Trump Café in the Trump Tower. 20. There are approximately 114 government buildings, both foreign and domestic, within a two-mile radius of Amali Mou, including 105 consulates, one federal government building, one state government buildings, six municipal buildings, and the United Nations Headquarters. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments. 21. Amali Mou is an approximately 150 square foot restaurant dedicated to economically sustainable sourcing that features Modern Greek fare, drawing inspiration from the cuisines of Santorini, Mykonos and the Aegean islands. The menu offers gyros, market salads,
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mezes, and over 35 wines, beers, and cocktails. The restaurant is open from 11 a.m. to 9 p.m. Monday to Friday and 11 a.m. to 5 p.m. Saturday and Sunday.
22. The restaurant also offers catering and delivery services. Catering packages provide food for 15-25 people.
23. Online ratings demonstrate Amali Mou’s success in the New York restaurant market. Google.com and TripAdvisor rate Amali Mou 4 out of 5 stars.
Government Business 24. Amali and Amali Mou are frequented by foreign and domestic government
officials. Additionally, my restaurants receive Form DTF-950 from diplomatic missions and personnel who are paying with government funds. Form DTF-950 is a certificate for tax exemption that diplomats and diplomatic personnel use while traveling.
25. These tax forms reveal that the many government officials have dined at my restaurants, including the following:
a. The mayor of Athens dined at Amali in 2017; b. the mayor of Rome dined at Amali in 2017; c. the first lady of Japan dined at Amali in 2017; d. the Ambassador of Cyprus dined at Amali in 2015. 26. Amali typically hosts one or two events each year for the United Nations. 27. Amali hosted an event for the United States Department of State in 2014. 28. Tax exempt sales at Amali in November 2016 totaled $22,751. In December 2016, tax exempt sales at Amali totaled $15,811, a nearly $7,000 decline from the prior month. My most recent sales receipts, from June 2017, reflect only $15,607 in tax exempt sales. The decline in tax exempt sales reflects a decline in government business. 29. In order to counteract this decline in government business, I took three steps that required the expenditure of resources and time. I joined new event listing services, including BizBash. I engaged the public relations firm Sunshine Sachs to increase event bookings. I personally took over event coordination at Amali.
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,

Plaintiffs,

Civil Action No. 1:17-cv-00458-RA

v.

DECLARATION OF JILL PHANEUF

DONALD J. TRUMP, in his official capacity as President of the United States of America,

Defendant.

DECLARATION OF JILL PHANEUF I, Jill Phaneuf, submit this declaration to describe my efforts to book government events at two Kimpton Hotels in Washington, D.C., the Carlyle Hotel and the Glover Park Hotel. The statements in this declaration are based on my personal knowledge. 1. I am a resident of Washington, D.C. and I book and curate events for the Carlyle Hotel and the Glover Park Hotel. In particular, I aim to book embassy functions, political functions involving foreign governments, and functions for organizations that are associated with foreign governments at the Carlyle Hotel and the Glover Park Hotel. My compensation is determined as a percentage of the gross receipts of the events that I book for these hotels. The Carlyle Hotel 2. The Carlyle Hotel is located just north of Dupont Circle at 1731 New Hampshire Avenue, Northwest. The Carlyle Hotel is a ten to fifteen-minute taxi or Uber ride from the Trump International Hotel Washington, D.C. I believe the event spaces at the Carlyle Hotel
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compete directly for corporate, government, and transient banquet business with event spaces at the Trump International Hotel Washington, D.C.
3. There are approximately 183 government buildings within a two-mile radius of the Carlyle, including 151 embassies, 26 federal government buildings, and six municipal buildings. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments.
4. The Carlyle provides 2,800 square feet of contemporary art-deco inspired and green event space for business and social events. The space is adaptable for a range of uses, including film screenings, fundraisers, book signings, photo shoots and gallery showings. The Carlyle is equipped with the necessary multimedia for business and social events, including highspeed internet, ultramodern A/V equipment, and tech support.
5. Events are catered by the Riggsby, the Carlyle’s on-site restaurant featuring upscale American fare by James Beard award-winning chef Michael Schlow. Event guests also can choose from an impressive beverage selection, including options for cocktail demonstrations or sommelier-led wine tasting.
6. The Riggsby projects an intimate and nostalgic yet refined ambiance with its unique “key hole” shaped doorway, open kitchen, wood tables, leather booths, brass finishes, and whimsical décor, including custom designed wallpaper that highlights original artwork by renowned artist Adrienne Schlow. The Washingtonian named the Riggsby one of the “100 Very Best Restaurants” in the D.C. area in 2016. The Washington Post described the Riggsby as the “new glam supper club” and rated it 2.5 out of 3 stars.
7. Chef Schlow has restaurants spanning the country and is one of the most influential and respected chefs in America. He has appeared on the Tonight Show with Jimmy Fallon, Bravo’s Top Chef Masters, The Today Show, Good Morning America, The Rachel Ray Show, CBS This Morning, Nightline, and the Food Network. He has received numerous awards, including being named “Best Chef in the Northeast” by the James Beard Foundation, “Best Chef in the Country” by Sante Magazine, and receiving Robert Mondavi’s “Culinary
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Award of Excellence” which is given to only six recipients a year. His restaurants have been recognized as some of the best in the world by Esquire, Food & Wine, Conde Nast Traveler, and Gourmet. He is the author of the cookbook, It’s About Time, Great Recipes for Everyday Life, and is regularly requested to appear and speak at events and to the media about the restaurant and hospitality industry.
8. Multiple spaces are available for private events at the Carlyle Hotel, including the Ellington room, the Fitzgerald room, and the Taylor room.
9. The Ellington is a naturally lit, 630 square foot space complete with a large table, elegant white and brass chairs, and art-covered dark wood and maroon walls. It can accommodate 27 to 60 guests. The room includes an 80-inch TV and wall speakers for presentations. The space can be used for business meetings, cocktail receptions, or elegant candle-lit dinners. I believe the Ellington competes directly for corporate, government, and transient banquet business with event spaces at the Trump International Hotel Washington D.C.
10. The Taylor is a spacious 1,473 square foot space that can accommodate up to 120 people. The Taylor features exposed brick walls, plush emerald green arm chairs, elegant brass bottomed standing lamps, a large art deco inspired print of the Capitol building, three built-in projection screens, speakers wired throughout the room, and a serving area for bars and buffets. I believe the Taylor competes directly for corporate, government, and transient banquet business with event spaces at the Trump International Hotel Washington D.C.
11. The Fitzgerald is right off the main dining room of the Riggsby. It is a 250 square foot private dining room with a low lit speakeasy feel that has dark wood lining, leather seating, and art covered walls. It can accommodate 12 guests. I believe the Fitzgerald competes directly for corporate, government, and transient banquet business with event spaces at the Trump International Hotel Washington D.C.
The Glover Park Hotel 12. The Glover Park Hotel is located in upper Georgetown at 2505 Wisconsin Avenue
Northwest, near “Embassy Row” on Massachusetts Avenue The Glover Park Hotel is a fifteen 3
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to twenty-minute taxi or Uber ride from the Trump International Hotel Washington D.C., depending on traffic I believe the event spaces at the Glover Park Hotel compete directly for corporate, government and transient banquet business with event spaces at the Trump International Hotel Washington, D.C.
13. The Glover Park Hotel is perched on a hill above a tree-lined, picturesque neighborhood and provides impressive panoramic views of the District. The hotel blends metropolitan edge with familial comfort and tranquility and features creative design pieces, including a custom map of D.C.’s Rock Creek Park on the property’s eight story façade, original mixed-media artwork, handmade light fixtures, and a variety of natural textiles throughout the communal spaces. The Glover Park Hotel provides the necessary multimedia for business and social events, including wireless internet throughout the premises and audio visual support.
14. There are 151 government buildings within a two-mile radius of the Glover Park Hotel, including 149 embassies and two municipal buildings. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments.
15. The Glover Park Hotel provides 3,800 square feet of contemporary event space for business and social events. The space is adaptable for a range of uses, including meetings, cocktail receptions, and large dinner parties.
16. Events are catered by the Casolare, the Glover Park Hotel’s on-site restaurant featuring James Beard award-winning chef Michael Schlow. Casolare offers fresh, seasonal, and healthful cuisine that finds its roots in Southern Italy. The menu is inspired by the Italian tradition that “simple is better” and offers exceptional, flavorful, authentic food in a comfortable and approachable setting. The Washington Post described the restaurant as “a little piece of Puglia [a region in southern Italy] moved into Casolare” and lauded the restaurant for its fresh and quality ingredients. The restaurant features a large wooden bar, white hanging light fixtures, and Tuscan inspired tiled walls.
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17. There are four spaces available for private events – the Cocktail Garden, the Walnut Ballroom, the Walnut East Room, and the Walnut West Room.
18. The Cocktail Garden is a 2,000 square foot garden with lush greenery interspersed with lavender, rosemary, and thyme. In the evening, guests can enjoy cocktails under white tents dressed with bistro lights, and with lit lanterns hanging among garden benches. Guests can drink crafted cocktails, punches, and refreshers, as well as a selection of beer and wine. Guests can also eat savory small bites such as watermelon and arugula salad, zucchini pizza with pistachio pesto, and charcuterie and cheese. The Cocktail Garden can accommodate up to 150 people.
19. The Walnut Ballroom is an expansive 1,860 square foot ballroom featuring large floor to ceiling windows, along with white and light wood accents and low lighting. The room features unique wooden art installations that hang from the ceiling. The Walnut Ballroom can accommodate up to 200 people. The room can be arranged to accommodate meetings, cocktail receptions, or a large dinner party. The Walnut Ballroom can be divided into the Walnut East room and the Walnut West room, for event customers seeking a smaller space.
Government Business 20. I started my position booking and curating events for the Carlyle Hotel and the
Glover Park Hotel in April 2017. 21. I am actively seeking to book and curate numerous events at the Carlyle Hotel and
the Glover Park Hotel for foreign and domestic governmental officials and entities. 22. I have reached out to the Russian Embassy to organize an evening cocktail
reception at the Glover Park Hotel. The Russian Embassy is across the street from the Glover Park Hotel.
23. I met with a senior coordinator for the Japanese Embassy who was interested in renting the Cocktail Garden of the Glover Park Hotel for an event.
24. I have reached out to an organization associated with the Government of Saudi Arabia to book a roundtable event at the Glover Park Hotel.
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant.

Civil Action No. 1:17-cv-00458-GBD

DECLARATION OF RACHEL J. ROGINSKY, ISHC

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant.

Civil Action No. 1:17-cv-00458-RA
DECLARATION OF SARU JAYARAMAN

DECLARATION OF SARU JAYARAMAN
I, Saru Jayaraman, submit this declaration to describe restaurants in Washington, D.C. and New York City that employ ROC members, and that are similar to restaurants that Defendant owns or that are otherwise located in Trump-branded properties. The statements in this declaration are based on my personal knowledge.
1. I am the Co-Founder and Co-Director of Restaurant Opportunities Centers United (ROC United) and Director of the Food Labor Research Center at the University of California, Berkeley. I have degrees from Yale Law School, Harvard’s Kennedy School of Government, and UCLA. I am also the author of the books Behind the Kitchen Door and Forked: A New Standard for American Dining. I received a 2015 Leadership Award from the James Beard Foundation, was recognized as a “Champion of Change” by the White House in 2014, and am listed as one of CNN's “Top 10 Visionary Women.”

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ROC United 2. ROC United is a non-profit organization with nearly 25,000 restaurant-employee members and over 200 restaurant members in cities across the United States, including in Washington, D.C., New York City, and Chicago, as well as numerous consumer members. 3. The restaurant-employee members of ROC United occupy low-wage positions at restaurants and hotels. Many of them are bussers, dishwashers, cooks, waiters, bartenders and hosts, and many of them are compensated in part from tips. Any loss of income to restaurantemployee members of ROC United that stem from fewer customers patronizing their employers would be highly detrimental to these employees. 4. ROC United engages workers, employers, and consumers to improve wages and working conditions in the restaurant industry, including by providing job training, placement, leadership development, civic engagement, legal support, and policy advocacy. 5. RAISE is a project of ROC United that seeks to work with restaurant owners to implement sustainable business models that champion living wages, basic benefits, fair promotion policies, environmental sustainability, safe and healthy workplaces, and other “high road” employer practices. 6. As discussed below, many of ROC United’s members, including in Washington, D.C. and New York City, own restaurants or are employed by restaurants that are similar in terms of location, price, quality, and reputation to Defendant’s restaurants or to restaurants that are located in Trump-branded hotels and other properties. ROC United brings this lawsuit on behalf of itself and its members because ROC and its members are concerned that increased competition from Defendant’s restaurants and hotels, as a result of Defendant’s violations of the Constitution’s Emoluments Clauses, likely has deprived and will deprive ROC’s restaurant and worker members of sales and income—including from foreign and domestic governments. 7. ROC United’s mission is advanced by protecting its worker members from loss of wages or tips due to government officials patronizing Defendant’s establishments rather than restaurants where ROC United members work. ROC United’s mission is advanced by protecting
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restaurant members—who are committed to fair business practices—from losing business due to government officials patronizing Defendant’s establishments rather than ROC United’s restaurant members.
8. ROC United’s members play an active role in its governance and in determining and implementing ROC United’s mission and initiatives. Each category of ROC United’s three membership categories (workers, restaurants, and consumers) has its own leadership committee. Worker members are organized in ten local offices and as online members, which send representatives to ROC United’s National Leadership Network. Restaurant members may serve on the RAISE steering committee. Consumer members may serve on the Diners United board of directors. Each of these leadership committees holds regular meetings and conducts monthly calls with ROC United’s leadership.
9. In addition, the majority of ROC United’s board of directors consists of its members, who are elected through the three leadership committees. ROC United’s Board of Directors is responsible for determining and implementing its mission, monitoring its programs, strategic planning, fundraising, budgeting, and policy development and oversight.
10. ROC United members are also active in the organization in other ways. RAISE members participate in an in-depth orientation prior to joining ROC United. RAISE also holds regular quarterly membership meetings and an annual conference. When joining, about 16,000 of ROC United’s worker-members participated in an in-person orientation, and the remaining 9,000 signed up online. Each of the ten local ROC United offices conducts monthly membership meetings for worker members, and ROC United holds a national conference annually. In addition, ROC United publishes a monthly newsletter that is distributed to all of its restaurant and worker members and informs them about ROC United’s initiatives. ROC United also sends email blasts to its full membership on a weekly basis.
Washington, DC 11. ROC United has more than 1,100 worker members in Washington D.C. Those members occupy low-wage positions at restaurants and hotels. Many of them are bussers,
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dishwashers, cooks, waiters, bartenders and hosts, and any loss of income to them would be highly detrimental.
12. Worker members of ROC United are employed at more than 100 restaurants in Washington, D.C. Those restaurants include several famous high-end restaurants such as: Oyamel Cocina Mexicana, Jaleo DC, Zaytinya, Minibar, The Source by Wolfgang Puck, Sonoma Restaurant and Wine Bar, Art and Soul, and BLT Steak.
13. Restaurants Jaleo DC, Zaytinya, Oyamel Cocina Mexicana, and Minibar are all owned by Chef José Andrés, who Defendant’s daughter, Ivanka Trump, has called “a genius.” Likely the most acclaimed restauranteur based in Washington, D.C., Chef Andrés is the recipient of numerous awards, including Chef of the Year by Bon Appetit, Outstanding Chef and Best Chef of the Mid-Atlantic Region by the James Beard Foundation, and Washington Chef of the Year by the Washington Post. He has also been awarded the National Humanities Medal and an honorary doctorate by George Washington University and has been named one of Times Magazine’s “100 Most Influential People in the World.” Chef Andrés apprenticed at elBulli, long considered the world’s best restaurant, under legendary chef Ferran Adrià. Among other things, Chef Andrés is credited with popularizing tapas and small-plate dining in the United States. Chef Andrés agreed to open a restaurant in the Trump International Hotel Washington, D.C. before pulling out reportedly due to Defendant’s comments and positions on immigrants.
14. Chef Andrés’s flagship restaurant, Jaleo DC (“Jaleo”), serves Spanish tapas. The Washingtonian ranked Jaleo among the top 100 restaurants in the Washington, D.C. area, Eater included Jaleo in its 38 Best D.C. restaurants list, and Zagat included it among 22 most popular restaurants in Washington, DC. Jaleo receive 3 stars (out of 4) from the Washington Post, which called it “the best tapas restaurant this side of the Atlantic.” It is open daily for lunch and dinner, and is priced at “$$$” ($31-60) on Yelp. Jaleo is located only three blocks from Trump International Hotel, Washington, D.C. at 480 7th Street, Northwest. Jaleo is also located within ten blocks of dozens of government buildings, including the White House and the Capitol.
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15. Chef Andrés’s restaurant Zaytinya serves Mediterranean-style small plates. The Washingtonian ranked Zaytinya among the top 100 restaurants in the Washington, D.C. area, Eater included Zaytinya in its 38 Best D.C. restaurants list, and Zagat listed it among the 15 best restaurants in Washington, D.C. It is open daily for lunch and dinner, and is priced at “$$$” ($31-60) on Yelp. Zaytinya is located only five blocks from Trump International Hotel, Washington, D.C. at 701 9th Street, Northwest. Zaytinya is also located within ten blocks of dozens of government buildings, including the White House and the Capitol.
16. Chef Andrés’s restaurant Oyamel Cocina Mexicana specializes in Mexican-style small plates. It has been ranked as one of America’s 5 Best Mexican Restaurants by Daily Meal, as one the Top 10 Mexican Restaurants in the U.S. by Fox News, as one of the Best Mexican Restaurants in the U.S. by Travel & Leisure, and as one of the 10 Best Mexican Restaurants in the World by the influential Mexican newspaper Reforma. The Food Network has listed Oyamel as one of the Top 10 Power Dining Spots in Washington, D.C. Oyamel is open daily for lunch and dinner, and is priced at “$$” ($11-30) on Yelp. Oyamel is located only three blocks from Trump International Hotel, Washington, D.C. at 401 7th Street, Northwest. Oyamel is also located within ten blocks of dozens of government buildings, including the White House and the Capitol.
17. Chef Andrés’s restaurant Minibar serves avant-garde tasting menus. Minibar was awarded two Michelin stars, is ranked the second best restaurant in Washington, D.C. by Washingtonian, and is listed among the 15 best restaurants in Washington, D.C. by Zagat, and is rated a perfect four stars by the Washington Post. Meals are $275 with $115 and $195 beverage pairing options. Minibar is located only three blocks from Trump International Hotel, Washington, D.C. at 855 E Street, Northwest. It is open Tuesday through Saturday for dinner. Minibar’s bar, Barmini, serves food a la carte, as well as drinks on evenings Tuesday through Saturday. Minibar is located within ten blocks of dozens of government buildings, including the White House and the Capitol.
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18. The Source by Wolfgang Puck (“The Source”) has earned numerous accolades, including by The Washingtonian, which ranked The Source among the top 100 restaurants in the Washington, D.C. area. The Source’s owner, Wolfgang Puck, is among the most celebrated chefs in the world, and has received a lifetime achievement award by the James Beard Foundation, which also twice awarded him Outstanding Chef (a recognition bestowed annually on only one chef across the country). The Source is fewer than 4 blocks from the Trump International Hotel, Washington, D.C. in the Newseum, located at 575 Pennsylvania Ave NW. It features innovative Asian cuisine (with entrées priced between $26 and $48 and a $135 tasting menu) and is open for dinner Tuesday through Saturday and for brunch on Saturdays. The Source is housed in a three-level restaurant space with floor-to-ceiling windows and a 2,000bottle wine collection. The Source is located within ten blocks of dozens of government buildings, including the Capitol.
19. Sonoma Restaurant and Wine Bar (“Sonoma”) is located at 223 Pennsylvania Avenue, Southeast on Capitol Hill—less than two blocks from the U.S. Capitol—and is surrounded by numerous government buildings, including congressional offices. Sonoma has long catered to government officials. The Hill included Sonoma in its list of “15 places in DC where lobbyists talk turkey” and noted that it has “emerged as another destination for lawmakers to court donors.” Sonoma has hosted at least 450 events for Congressman of both parties over the last decade, based on data collected by the Center for Responsive Politics. Indeed, Sunlight Foundation ranked it sixth for such events among all Washington, D.C. venues in September 2013 (the most recently published ranking). Sonoma focuses on fresh, naturally-raised, and local ingredients paired with the best American and international wines. It is open daily for dinner and on weekdays for lunch, and offers dinner entrées between $20 and $38 (including Ribeye steak and salmon).
20. The restaurant Art and Soul, located on Capitol Hill, is only a dozen blocks (and less than a mile) from Trump International Hotel Washington, D.C. Art and Soul is the signature restaurant in the four-star Liaison Capitol Hill DC hotel. It is owned by two-time James Beard
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Award-winning Chef Art Smith, who was formerly the personal chef to Oprah Winfrey. Art & Soul specializes in seasonal, Southern-influenced cuisine, with entrées between $25 and $43 (for a ribeye steak). The restaurant is open for dinner daily, for lunch on weekdays, and for brunch on weekends.
21. BLT Steak is a steakhouse operated by ESquared Hospitality Group, which also operates BLT Prime, a restaurant located in the Trump International Hotel. As ESquared’s president told the Washington Post, “If you’re wondering about the distinction between BLT Steak and BLT Prime, there really isn’t much of one.” BLT Steak is located eleven blocks from BLT Prime. BLT Steak and BLT Prime serve many identical dishes at identical prices; for instance, both restaurants serve a 16 oz New York Strip steak (both for $55), filet mignon (both for $53), and Scottish salmon (both for $35). BLT Steak is open weekdays for lunch and for dinner every day except Sunday. BLT Prime is open daily for breakfast, brunch/lunch, and dinner. BLT Steak is located within ten blocks of dozens of government buildings, including two block of the White House.
New York City 22. ROC United has more than 6,000 worker members in New York City at hundreds of restaurants. Those worker members occupy low-wage positions at restaurants and hotels. Many of them are bussers, dishwashers, cooks, waiters, bartenders and hosts, and any loss of income to them would be highly detrimental. 23. Worker members of ROC United are employed at hundreds of restaurants in New York City. Those restaurants include award-winning restaurants such as Breslin, the Spotted Pig and Amali. In addition, restaurant members of ROC include several famous, high-end restaurants such as The Modern, Gramercy Tavern, Union Square Café, RiverPark, Craft, Fowler & Wells and Amali. 24. The Spotted Pig, located in the West Village, has been a James Beard Award nominee for Outstanding Restaurant for each of the past three years. The Spotted Pig’s owner was awarded Outstanding Restaurateur for his restaurants, Spotted Big and The Breslin, and its
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head chef was named Best Chef: New York City. The Spotted Pig is located fewer than 3 miles from the Trump International Hotel New York and its restaurants. The Spotted Pig is open for lunch and dinner daily and for brunch on weekends. It focuses on seasonal British and Italian food, cooked using local ingredients, with entrées priced between $26 and $36.
25. The Michelin-starred Breslin is located in the ACE Hotel New York, at 16 West 29th Street, in the Flatiron neighborhood. Breslin is listed as one of 38 Essential New York Restaurants by Eater, which called it “one of New York City’s most accomplished meat restaurants” that is “firing on all cylinders.” It is nearby to numerous consulates and government buildings in Midtown East, and under 2 miles from the Trump International Hotel New York and the Trump SoHo New York. Breakfast, lunch, and dinner are served daily with dinner entrées priced between $27 and $39 (with additional entrées based on the market price). The ACE Hotel New York is a luxury four-star hotel. It is—along with Trump International Hotel New York— one of only six New York hotels with Michelin-starred restaurants.
26. The Modern is a two-Michelin-star restaurant located only 10 blocks from the Trump International Hotel New York and its restaurants Jean-Georges and Nougatine. Housed in New York’s Museum of Modern Art, it is part of James Beard award-winning chef Danny Meyer’s Union Square Hospitality Group. The Modern has earned three stars from the New York Times, Wine Spectator’s Grand Award, and four James Beard Awards, including for Best New York Restaurant, Outstanding Wine Service, and Outstanding Restaurant Design. The Modern focusses on contemporary cooking with seasonal ingredients and is open for lunch and dinner daily except Sundays. For dinner, the Modern offers a four-course set menu for $158.00 and an eight-course set menu for $208.00. The Modern is available for private events, with 64-guest and 24-guest private rooms; the full restaurant can also be rented for 120-guest seated meals and 250-guest receptions. The Modern’s address is 9 West 53rd Street—near numerous consulates and other government buildings in Midtown East.
27. Gramercy Tavern, also owned by Danny Meyer’s Union Square Hospitality Group, is a Michelin-starred restaurant that offers seasonal fine dining. It has earned three stars
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from the New York Times, which called it a “classic” and “one of the nicest restaurants in New York City” and named it a “Critic’s Pick.” Gramercy Tavern is open daily for lunch and dinner. For dinner, Gramercy Tavern offers a $129 three-course meal and a $179 tasting menu. Gramercy Tavern is located at 42 East 20th Street in the Flatiron District and is less than three miles from the Trump International Hotel New York and its restaurants and near numerous consulates and other government buildings in Midtown East.
28. The award-winning Union Square Café is known for being one of the progenitors of contemporary American cuisine. Owned by Danny Meyer’s Union Square Hospitality Group, Union Square Café has earned five James Beard Awards (including Outstanding Restaurant) and a three-star rating by the New York Times, which named it a “Critic’s Pick.” Union Square Café is open daily for dinner and lunch/brunch. Dinner entrées are priced between $48 and $28. Union Square Café is located at 101 East 19th Street, in the Flatiron District—less than three miles from the Trump International Hotel New York and its restaurants and near numerous consulates and other government buildings in Midtown East.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Executed this _23_r_d day of August, 2017.
_______________________________ SARU JAYARAMAN
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CERTIFICATE OF SERVICE I hereby certify that on April 24, 2018, I electronically filed the foregoing joint appendix with the Clerk of the Court for the U.S. Court of Appeals for the Second Circuit by using the CM/ECF system. All participants are registered CM/ECF users, and will be served by the appellate CM/ECF system.
/s/ Deepak Gupta Deepak Gupta

Case 18-474, Document 26-2, 04/24/2018, 2287465, Page1 of 67

No.$18'474$

In the United States Court of Appeals for the Second Circuit
____________________________

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF, AND ERIC GOODE,
Plaintiffs-Appellants,

v.

DONALD J. TRUMP, in his ofﬁcial capacity as President of the United States of America,
Defendant-Appellee. ____________________________

On Appeal from the United States District Court for the Southern District of New York
Case No. 17-cv-458 (The Honorable George B. Daniels) _________________________________________________________

JOINT APPENDIX VOLUME II
_________________________________________________________

NORMAN L. EISEN*
STUART C. MCPHAIL* ADAM J. RAPPAPORT*
Citizens for Responsibility and Ethics
in Washington 455 Massachusetts Avenue, N.W. Washington, DC 20001 (202) 408-5565

DEEPAK GUPTA JONATHAN E. TAYLOR JOSHUA MATZ DANIEL TOWNSEND* Gupta Wessler PLLC 1900 L Street, N.W., Suite 312 Washington, DC 20036 (202) 888-1741
deepak@guptawessler.com

April 24, 2018

Counsel for Plaintiffs-Appellants (Additional counsel listed on the next page)

Case 18-474, Document 26-2, 04/24/2018, 2287465, Page2 of 67

LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767
*Second Circuit admission pending

JOSEPH M. SELLERS
DANIEL A. SMALL
Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Washington, DC 20005 (202) 408-4600

Case 18-474, Document 26-2, 04/24/2018, 2287465, Page3 of 67
TABLE OF CONTENTS
VOLUME I U.S. District Court for the Southern District of New York docket sheet,
CREW et al. v. Trump, No. 1:17-cv-458-GBD .................................................... JA 1 Second amended complaint (Dkt. 28) ............................................................... JA 18 Declaration of Deepak Gupta (Dkt. 48) ............................................................JA 86
John Mikhail, The Deﬁnition of “Emolument” in English Language and Legal Dictionaries, 1523–1806 (Dkt. 48-1) ................................................................. JA 87 Appendix A: “Emolument” in English Language Dictionaries, 1604–1806 (Dkts. 48-2–48-11) ......................................................................................... JA 124 Declaration of Thomas Colicchio (Dkt. 49) ................................................... JA 256 Declaration of James Mallios (Dkt. 51) ............................................................ JA 263 Declaration of Jill Phaneuf (Dkt. 53) ............................................................... JA 269 Expert declaration of Rachel J. Roginsky (Dkt. 58) ..........................................JA 275 Declaration of Saru Jayaraman (Dkt. 77-1) ...................................................... JA 285
VOLUME II Declaration of Eric Goode (Dkt. 77-2) ............................................................. JA 294 Expert declaration of Christopher C. Muller (Dkt. 77-3) .................................JA 304 District court decision and order (Dkt. 103) ..................................................... JA 324 Judgment (Dkt. 104) ........................................................................................ JA 353 Notice of appeal (Dkt. 105) .............................................................................. JA 354

CaseCa1s:1e71-c8v--407044,5D8o-GcuBmDenDt 2o6c-u2m, e0n4t/2747/-2201F8,ile2d280784/265/,1P7agPea4goef 167of 10

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC. JILL PHANEUF, and ERIC GOODE

Plaintiffs, v.

Civil Action No. 1:17-cv-00458-RA DECLARATION OF ERIC GOODE

DONALD J. TRUMP, in his official capacity as President of the United States of America,

Defendant.

DECLARATION OF ERIC GOODE
I, Eric Goode, submit this declaration to describe my hotels and restaurants in New York City that I believe compete with Defendant’s hotels and restaurants and to describe some of the business they have done with government officials. The statements in this declaration are based on my personal knowledge.
1. I am the owner of several hotels and restaurants in New York City, including the Bowery Hotel, located in the Lower East Side, and the Maritime Hotel, located in the Meatpacking District. The restaurants I own include Gemma, The Waverly Inn, and The Park.
2. Some of my hotels and restaurants compete with some of Defendant’s hotels and restaurants because they have similar prices, quality and reputations that make both attractive to a common set of customers, and they are just a short cab ride away from one another.
3. Clientele of my establishments frequently include diplomats, other officials of foreign states, and officials of the United States and various states.
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The Bowery 4. The Bowery is located in the Lower East Side at 335 Bowery. The Bowery is located two blocks east of the Bleecker Street/Broadway-Lafayette Street subway station. The hotel is a ten-to-fifteen-minute taxi or Uber ride (with traffic) to the Trump SoHo Hotel and a twenty-minute taxi or Uber ride (with traffic) to the Trump International Hotel and Tower New York. I believe the Bowery competes directly with the Trump SoHo and the Trump International, including for government business. 5. There are approximately 65 government buildings, both foreign and domestic, within a two-mile radius of the Bowery, including thirty consulates, ten federal government buildings, ten state government buildings, fourteen municipal buildings, and the United Nations Headquarters. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments. 6. The Bowery is a seventeen story hotel with 135 vintage-style guest rooms that feature industrial-style floor to ceiling windows, marble baths and wood floors with Asian rugs, and 400 thread-count Egyptian cotton linens. Suites and one bedroom rooms add a sitting area, and the one bedrooms feature an additional small terrace. Room prices range from $395 to $850 per night. The 2017 average daily room rate as of July 11, 2017 was $466.84. The 2016 average daily room rate was $498.17. New York Magazine places the Bowery in the “expensive” to “very expensive” price range. 7. Amenities and services include 24/7 in-room dining and room service, 24/7 concierge, a fitness center, in-room spa services, a business center, a complimentary film lounge, high definition flat screen TVs with DVD players, same day dry cleaning and laundry services, in-house pressing service, shoe shine service, complimentary New York Times or New York Post newspaper, babysitting services, and valet services. 8. Additionally, the Bowery has a 10,000 square foot event space that can accommodate up to 600 guests. The space is complete with a private entrance, expansive
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outdoor terrace, and an oversized green tiled fireplace. The space also features exposed brick walls and iron chandeliers.
9. The hotel features a trendy lobby bar with low lighting, plush arm chairs, bar stools, Asian rugs, dark wood detailing, and a mirrored ceiling.
10. The Bowery has received several accolades and has been referred to as an “essential New York hotel” by Curbed New York, an online magazine providing information about homes, neighborhoods, and cities. The Bowery has a AAA Four Diamond Rating and was named one of the “Best Hotels in New York City 2016” by Conde Nast Traveler. TripAdvisor lists The Bowery as one of only 42 five star hotels in New York City. Oyster.com, a website described as a “Hotel Tell-All” that publishes reviews and findings from professional investigators who have visited and reviewed 38,000 hotels across the world, included the Bowery on several award lists, including “Best Boutique Hotels in NY,” “Best Boutique Hotels in NYC,” and “Best Hotel Rooms in New York.”
11. Online ratings demonstrate the Bowery’s success in the New York City hotel market. The Bowery has a 4 out of 5 star rating on google.com, and 4.5 out of 5 stars on TripAdvisor. The Bowery was number 33 in Condé Nast Traveler’s 2016 Reader Choice Awards for Top Hotels in New York City.
12. Bank of America Discount Pricing via Priceline rates the Bowery as a 5 star hotel with a nine out of 10 rating. U.S. News & World Report gives the Bowery a four out of five star rating and ranks it number 36 on its Best New York City Hotels list.
The Maritime Hotel 13. The Maritime Hotel is located in the Meatpacking District at 363 W 16th Street. The Maritime is less than a quarter mile from the 14th Street subway station. The hotel is a fifteen minute taxi or Uber ride (with traffic) to the Trump SoHo. 14. There are approximately 101 government buildings, both foreign and domestic, within a two-mile radius of the Maritime, including 77 consulates, seven federal government buildings, four state government buildings, thirteen municipal buildings, and the United Nations
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Headquarters. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments.
15. The Maritime is a 17-story hotel with 126 guest rooms and suites. The Maritime features several penthouses ranging in size from 550 to 2500 square feet. The penthouse room prices at The Maritime range from $725 to $1,500 per night. Nymag.com places the Maritime in the “expensive” to “very expensive” price range.
16. The lobby of the hotel is an open space with a modern library feel that features large industrial-style windows, large hanging light fixtures, shelves of books, cozy reading nooks, succulent and tropical plants, and oversized artwork.
17. “Junior Penthouse Rooms” are 550 square feet and feature a king bed, large rain showers, complimentary wifi, wet bars, Nespresso coffee makers, and an artisanal minibar.
18. “Terrace Penthouses” are 1000 square feet and feature king beds and 250 square foot terraces with rain showers, large soaking tubs with rain showers, complimentary wifi, wet bars, Bose sound systems, Nespresso coffee makers, and an artisanal minibar.
19. The “Rooftop Penthouse” is 2500 square feet and features a king bed and a 1500 square foot rooftop terrace with outdoor seating and loungers and offers sweeping views of the City, two fireplaces, a large soaking tub with rain shower, complimentary wifi, a wet bar, a Bose sound system, a Nespresso coffee maker, and an artisanal minibar.
20. Amenities and services offered by the Maritime Hotel include 24/7 in-room dining and room service, concierge, a fitness center, a business center, complimentary newspaper, complimentary bicycles, and babysitting services.
21. Online ratings demonstrate the Maritime’s success in the New York hotel market. TripAdvisor, hotels.com, and expedia.com all give the Maritime 4.5 out of 5 stars. The hotel has a 4.3 out of 5 star rating on google.com. Kayak.com rates Maritime an 8.8 out of 10 for an overall rating of “Excellent.”
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22. Bank of America Discount Pricing via Priceline rates the Maritime as an 8.7/10 with an overall rating of “Great.” U.S. News & World Report gives the Maritime a four out of five star rating.
23. I believe that the penthouse rooms in the Maritime Hotel compete for business, including government business, with the Trump SoHo.
Gemma Restaurant 24. Gemma is located inside the Bowery Hotel and is a 10-15minute taxi or Uber ride (in traffic) from Trump SoHo’s event spaces. I believe Gemma’s event space competes directly for corporate, government, and transient banquet business with the event spaces at the Trump SoHo. 25. There are approximately 65 government buildings, both foreign and domestic, within a two-mile radius of Gemma, including thirty consulates, ten federal government buildings, ten state government buildings, fourteen municipal buildings, and the United Nations Headquarters. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments. Gemma is a 10,000 square foot restaurant featuring Italian/American cuisine. The menu is inspired by Head Chef Chris D’Amico’s travels through France and Italy. D’Amico has been with the restaurant since 2007 and has earned Gemma a one star rating from the New York Times critic. The restaurant is designed as an Italian brasserie, and features an open kitchen, high ceilings with large round chandeliers, and wooden tables, giving it a rustic yet modern feel. 26. Gemma serves breakfast and dinner seven days a week and lunch Monday through Friday. Gemma serves brunch on Saturdays and Sundays. 27. Breakfast entrees range from $7-$15; brunch entrees from $7-$26; lunch entrees from $7-$27; dinner entrees from $15-$36; and cocktails and other alcoholic beverages from $11-$90 per glass/bottle.
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28. Online ratings demonstrate Gemma’s success in the New York restaurant market. Foursquare rates Gemma an 8.8 out of 10, Google.com rates Gemma 4.1 out of 5 stars, and TripAdvisor rates Gemma 4 out of 5 stars. Vogue magazine calls Gemma an “Italian jewel.”
29. Gemma offers event space on the second floor with a private entrance, outdoor terrace and an iconic green-tiled fireplace. The space covers 10,000 square feet and can accommodate up to 600 guests.
Waverly Inn 30. The Waverly Inn restaurant is located in the West Village at 16 Bank Street. The Waverly Inn is a 10-15 minute taxi or Uber ride from Trump SoHo’s restaurants and event spaces. I believe The Waverly Inn’s event space competes directly for corporate, government, and transient banquet business with Trump SoHo’s event spaces. 31. There are approximately 88 government buildings, both foreign and domestic, within a two-mile radius of The Waverly Inn, including 63 consulates, seven federal government buildings, seven state government buildings, ten municipal buildings, and the United Nations Headquarters. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments. 32. The Waverly Inn is a 5,000 square foot restaurant featuring American cuisine alongside contemporary seasonal dishes using organic and local ingredients, headed by Chef Oscar Lorenzzi. The restaurant is located on the ground floors of two adjoining townhouses and offers an eclectic collection of garden seating and dining spaces with red booths, fireplaces, large round chandeliers that produce low amber lighting, oversized art, and dramatic floral arrangements. These dining areas are available to be booked by small and large groups. 33. The restaurant serves dinner seven days a week and brunch on Saturday and Sunday. 34. Dinner entrees range from $21-$54 and brunch entrees from $15-$60.
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35. Online ratings demonstrate The Waverly Inn’s success in the New York restaurant market. Open Table rates The Waverly Inn 4.6 out of 5 stars, Zagat rates the Waverly Inn at 4.2 out of 5 stars, and TripAdvisor rates The Waverly Inn at 4 out of 5 stars.
36. On at least 55 occasions, concierges at various Trump hotels have booked reservations for Trump hotel guests at the Waverly Inn.
The Park Restaurant 37. The Park is located in Chelsea at 118 Tenth Avenue. The restaurant serves brunch, lunch, and dinner seven days a week and is also open for late night cocktails seven days a week. The Park is a 10-15 minute taxi or Uber ride from Trump SoHo’s restaurants and event spaces. 38. There are approximately 86 government buildings, both foreign and domestic, within a two-mile radius of The Park, including 69 consulates, six federal government buildings, two state government buildings, six municipal buildings, and the United Nations Headquarters. These government buildings host a variety of events and meetings attended by government officials from both foreign and domestic governments. 39. The Park is a 20,000 square foot restaurant featuring Italian/American cuisine. The restaurant is headed by Executive Chef Eduardo Gomez. The restaurant has several spaces that can be rented out by groups, each of which is detailed below. 40. The “Main Room” is the main dining room and it comfortably seats 150 people. The Main Room features a front bar and adjacent lounge area that is furnished with a 900 year old red wood root bench and a fireplace. The Main Room is weaved around a 30 foot cluster of bamboo, and a wall of glass doors opens the room to a spacious garden. I believe the Main Room competes directly for corporate, government, and transient banquet business with the Trump SoHo’s event spaces. 41. The “Atrium” is a glass enclosed and sun soaked room featuring a glazed brick fireplace. The space holds up to 45 people for a standing cocktail reception and 33 people for a
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seated dinner. I believe the Atrium competes directly for corporate, government, and transient banquet business with the Trump SoHo’s event spaces.
42. The “Garden” space is over 4,000 square feet and is home to Japanese maple trees and vines of wisteria. The garden is covered and heated in the winter and is available for year round dining. The garden can accommodate 325 people for a standing cocktail reception and 150 people for a seated dinner. I believe the Garden competes directly for corporate, government, and transient banquet business with Trump SoHo’s event spaces.
43. The “Red Room” space is an old world Asian speakeasy with wicker scoopedback chairs, red glass topped tables and banquettes covered in raw silk. The Red Room can accommodate up to 125 people for a standing cocktail reception and 55 people for a seated dinner. I believe the Red Room competes directly for corporate, government, and transient banquet business with Trump SoHo’s event spaces.
44. The “Penthouse” space opens to a spacious rooftop patio that can be used year round. The patio features a direct view of the High Line, a 1.45 mile-long linear park on the former New York Central Railroad that features luscious landscaping, and views of the City. The Penthouse can be rented out for a cocktail reception or a seated dinner and can accommodate 200 people. I believe the Penthouse competes directly for corporate, government, and transient banquet business with Trump SoHo’s event spaces.
45. Brunch entrees at the Park range from $13-$19; lunch entrees from $11-$21; and dinner entrees range $14-27.
46. Online ratings demonstrate The Park’s success in the New York restaurant market. OpenTable rates the restaurant at 4.2 out of 5 stars and Foursquare rates the Park an 8 out of 10.
Government Business 47. My hotels and restaurants are regularly frequented by foreign and domestic government officials. Available guest logs from the Bowery hotel include at least nine instances of government officials booking rooms at the Bowery. Available guest logs from the Waverly
8
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Inn include at least six instances of government officials dining at the Waverly Inn. Additionally, on several occasions, my hotels and restaurants have received Form DTF-950 from diplomatic missions and personnel who are paying with government funds. Form DTF-950 is a certificate for tax exemption that diplomats and diplomatic personnel use while traveling in the United States.
48. Many state and local government officials have dined or stayed at my establishments, including:
a. an employee of the New York State Attorney’s Office dined at the Waverly Inn; b. an employee of the New York City Public Advocate’s Office dined at the
Waverly Inn; c. an employee of New York’s Office of Administrative Trials and Hearings dined
at the Waverly Inn; d. an employee of the California state court system dined at the Waverly Inn; e. an employee of the New York City Department of Education stayed at the
Bowery; and f. the New York Police Department, 9th Precinct, has held three events at the
Bowery. 49. Federal government officials have dined or stayed at my establishments, including: a. Seth Carpenter, when he was Acting Assistant Secretary for Financial Markets at
the Department of Treasury, stayed at the Bowery; b. an employee of the United States Department of Justice stayed at the Bowery; c. an employee of the United States Internal Revenue Service stayed at the Bowery;
and d. an employee of NASA dined at the Waverly Inn. 50. Foreign government officials who have dined or stayed at my establishments include:
9
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a. the President of Gabon, Omar Bongo, who has stayed at the Maritime on several occasions;
b. Morten Wetland, a Norwegian Diplomat, who stayed at the Bowery numerous times between 2007 and 2011;
c. the Crown Princess of Norway, Mette Mant, who has stayed at the Bowery on several occasions between 2008 and 2012;
d. the President of French Polynesia, Oscar Temaru, who stayed at the Bowery in 2005;
e. an employee from New South Wales’ Transportation Department dined at the Waverly Inn, and two employees from New South Wales’ Transportation Department stayed at the Bowery;
f. an employee from Singapore’s Attorney General’s Office stayed at the Bowery; and
g. an employee of Victoria, Australia’s Department of Justice and Regulation stayed at the Bowery.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Executed this 24th day of August, 2017.
_______________________________ ERIC GOODE
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant.

Civil Action No. 1:17-cv-00458-GBD

DECLARATION OF CHRISTOPHER C. MULLER, PH.D.

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EXPERT DECLARATION OF CHRISTOPHER C. MULLER, PH.D.  I. Experience and Qualifications
ͳǤ  ͵Ͳ ǦǡǤ
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͵Ǥ ͳͻͻͻ   Ǥ Ǧ  ǡǡ Ǥǡ ʹͲͳͲǤ
ͶǤ  ǡǡ Ǥ
ͷǤ ǤǤ ǡǡ ǤǣǯǢ ǡǡǯǡǯǡǡ Ǥ
͸Ǥ  Ͷͻ Ǥ
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͹Ǥ   ǡǡǡ ǡǡǤ
ͺǤ  ǡǣǡǡǡ ǡǡ ǡǡǡǡ ǡǡǡǡ
ǡ ǡǤ
ͻǤ ̈́͸ͲͲǤ II. Assignment andMaterials Reviewed
ͳͲǤ     ǯ                ǯ   ǯ ǡǡ ǡǤǤ        ǡ ǡ    Ǥ
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III. The Nature of Restaurant and Event Competition ͳ͵Ǥ ǲǳǡ  ǣ
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Ǥ ǡ Ǣǣ Ǥ ͳͲǦͳͷǡ Ǥ ͳͷǦʹͲǡ Ǥ ʹͲǦ͵Ͳǡ
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ǡ Ǥ Ǥ ͳͶǤ Ǥ  ǣ Ǥ SnackȋǡǤǤǡǡǡǡ
ǡ̈́ͷǤͲͲȌ Ǥ Coffee Shopȋǡǡǡ
ǡǡǡ̈́ʹǤͲͲǦ̈́ͺǤͲͲȌ Ǥ QSRȋǳǳǡǡ
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Ǥ Luxuryȋǡ±ǡǦ ǡǡǡǡ ̈́͹ͷǤͲͲȌ
ͳͷǤ  ȋȌ ǡǤ Ǥ ǡ ǡ Ǥ Ǥ  ǡ ǯǤ ǡ Ǥ ǡ ǡ ǯ Ǥ ǡǡ  Ǥ
ͳ͸Ǥ ǡǡ Ǥ
ͳ͹Ǥ ǡǡǡ  ǡ ǯǤ
ͳͺǤ ǡ ǤǤǡǤǡ 
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JA 308

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IV. The foodservice facilities in Trump Tower New York—Trump Grill, Trump Café and Trump Ice Cream—compete with ROC/RAISE neighboring restaurants and event spaces
A. Location Proximity
ͳͻǤ ͹ʹͷ   ±
Ǥ
ʹͲǤ ȀǡͳͳͷǤ͸Ͳǡǡʹ͵Ͳ ǡͳͷǦǤ ͳͲǦǡͳͷǦǤ Ǥ
ʹͳǤ Ȁ±ʹǡͷǡ ǡͳͳǤͷ͵ǤǡͷǦ Ǥ
ʹʹǤ ȀǡͻǤͷ͵ǡͷǦ Ǥ
ʹ͵Ǥ ȀǡͶͷͲǤʹͻǡͳͷʹͲǦ Ǥ
B. Comparable Restaurant Offerings
ʹͶǤ  Ǥȋ ̈́ͶǤͲͲǦ̈́ͷǤͲͲȌǤ±
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JA 309

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ȋ ͵Ǧ ̈́ʹͺǤͲͲ̈́ͶͷǤͲͲȌǤ ʹͷǤ ȀȄͳͷǦ Ȅ ̈́ʹͳǤͲͲ̈́͵͸ǤͲͲǤ
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Ǥ ʹ͸Ǥ ȀȄͳͷǦ Ȅ̈́ͳͲǤͲͲ̈́ͳʹǤͲͲǤ 
ǡ±ǡ Ǥ ʹ͹Ǥ Ȁ±ʹȋǡ̈́ͺǤͲͲ ̈́ʹͲǤͲͲȌǡͷȋǡ ǡ̈́ͳͲǤͲͲ̈́ʹͺǤͲͲȌǡȋ ȌȄͷǦ Ȅǡǡ±ǡ ǡǤ ʹͺǤ ȀȄͷǦ ȄʹǦǡ  ̈́ͳͷͺǤͲͲ̈́ʹͲͺǤͲͲǡ Ǥ
ǡ 
Ǧ ǡ
Ǥ ʹͻǤ ȀȄͳͷʹͲǦ Ȅ Ǥ̈́͵ʹǤͲͲ̈́ͶͺǤͲͲǤ
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C. Comparable Event, Meeting and Catered Offerings
͵ͲǤ ǡǡ 
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JA 310

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ǡ Ǥ ͵ͶǤ ȀȄǦ Ȅǡ ǣ ͳͺǦʹʹ̈́͹ͷͲ ̈́ͳǡͷͲͲǢʹͷǦͶͲ̈́ͳǡʹͷͲ ̈́ʹǡͷͲͲǢǯʹͲǦ͵Ͳ ̈́ʹǡͷͲͲǤͳͷͲ Ǥ
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JA 311

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͵ͷǤ Ȁǡȋͳͷ ʹͲǦȌǤ ͶͲǡ ̈́ͳǡʹͲͲ̈́ͷǡͲͲͲǤͳͲͲ ̈́ʹǡͷͲͲ̈́ͳͲǡͲͲͲǤ ͳͷͲǡ̈́͵ǡ͹ͲͲ̈́ͳͷǡͲͲͲǤ ͷͲǦ͸Ͳ̈́ʹǡͷͲͲ ̈́ͷǡͲͲͲǤ
ǡ ǡ
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D. Patronage by Surrounding Foreign and Domestic Government Clientele
͵͸Ǥ ͳͲͲǡ Ǧ ȋ
ǡ±Ȍ ȋǡǡǡ±ʹǡͷǡ ǡȌǤ
V. Jean-Georges and Nougatine in the Trump International Hotel New York compete with ROC/RAISE neighboring restaurants and event spaces
A. Location Proximity
͵͹Ǥ ǡ ͳǡȋǦ
Ȍ ȋȌǤ
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JA 312

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ͶͲǤ Ȁ
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ͶͳǤ ȀǡͶ͵ͳͻǡʹͲ͵ͲǦ Ǥ
ͶʹǤ ȀǡͶͷͲǤʹͻǡʹͲ͵ͲǦ Ǥ
B. Comparable Restaurant Offerings
Ͷ͵Ǥ Ǧ
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ǯ ̈́ʹͲͺǤͲͲǤ
ͶͶǤ ȀȄͳͲͳͷǦ ȄʹǦ ̈́ͳͷͺǤͲͲ̈́ʹͲͺǤͲͲǡ Ǥ
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Ǥ
ͶͷǤ Ȁ
ȄͳͷʹͲǦ ȄͳǦǡ  ̈́ʹͻǤͲͲ ̈́͵͸ǤͲͲǡ ͵Ǧ ̈́ͳʹͷǤͲͲǡ̈́ͳ͹ͲǤͲͲǡ̈́ͳͷͲǤͲͲǤ 
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JA 313

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 Ǥ
ͶͺǤ  ̈́͵ͳǤͲͲ ̈́͹ʹǤͲͲǤ
ͶͻǤ ȀȄͳͲǦ Ȅ ̈́ͳͷǤͲͲǦ̈́͵͸ǤͲͲǤ
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C. Comparable Event, Meeting and Catered Offerings
ͷͲǤ Ȅ ȋͳͷǦ͵ͲȌǡ ȋͳͲǦͳʹȌǡ ȋͳͶǦʹͷȌǡ Ǧ
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ͷͳǤ ͵ǦǦ
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JA 314

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  Ǥ ͷͶǤ Ȁ͵Ǧ ͶͲǤ ͳͶǲǯǤǳ 
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ǡ  Ǥ ͷͷǤ Ȁǡ Ǥ ͳͺǦʹʹ ̈́͹ͷͲ̈́ͳǡͷͲͲǢʹͷǦͶͲ ̈́ͳǡʹͷͲ̈́ʹǡͷͲͲǢǯ ʹͲ̈́ʹǡͲͲͲǤ ͳͷͲǤ
ǡ Ǧ
ǡ   Ǥ ͷ͸Ǥ Ȁǡǡ ǣͶͲ ̈́ͳǡʹͲͲ̈́ͷǡͲͲͲǢ ͳͲͲ̈́ʹǡͷͲͲ ̈́ͳͲǡͲͲͲǢǡ ͳͷͲǡ̈́͵ǡ͹ͲͲ̈́ͳͷǡͲͲͲǢ ͷͲǦ͸Ͳ̈́ʹǡͷͲͲ̈́ͷǡͲͲͲǤ
 ǡ Ǧ
ǡ
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D. Patronage by Surrounding Foreign and Domestic Government Clientele
ͷ͹Ǥ ͳͲͲǡ Ǧ ͳͳ
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JA 315

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ȋǦ
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VI. The event spaces in Trump SoHo Hotel compete with the event spaces in ROC/RAISE and Goode neighboring restaurants
A. Location Proximity
ͷͺǤ ʹͶ͸Ǥ ȀǡǤǯǡ ǤͺǡͲͲͲ ǡ Ǥ
ͷͻǤ 
ǯǡǡͳ͸ǡ ͳͲͳͷǦ Ǥ
͸ͲǤ 
ǯǡǡͳͳͺǡͳͲ ͳͷǦ Ǥ
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ǡ͵͵ͷǡͳͲͳͷǦ  Ǥ
͸ʹǤ Ȁǡʹǡ ͳͲͳͷǦ Ǥ
͸͵Ǥ Ȁ
ǡͳͲͶǤǡ ͳͲͳͷǦ Ǥ
͸ͶǤ Ȁ
ǡͶʹʹͲǡ ͳͲͳͷǦ Ǥ
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JA 316

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͸ͷǤ ȀǡͶ͵ͳͻǡͳͲͳͷǦ  Ǥ
͸͸Ǥ ȀǡͶͷͲǤʹͻǡͳͷʹͲ Ǥ
B. Comparable Event, Meeting and Catered Offerings
͸͹Ǥ ǯǡǲǡǳ  Ǥ ͺǡͲͲͲǡ Ǥ Ͷ͸Ǥ ͵ͲͲǤ ͶͲǡ ʹͶǤ
͸ͺǤ 
ǡ
ȄͳͲͳͷǦ Ȅ  ǡǤ ͳͲǡͲͲͲ͸ͲͲǤ
 ǡǡ Ǥ
͸ͻǤ 
ǡȄͳͲͳͷǦ ȄǦ ǲǳͳͷͲǤ ǡǲǡǳ ͵͵Ǥǲ
ǳͶͲͲͲ ǦǦͳͷͲǤǲ ǳǦͷͷǤǲǳ ͸ͷǤ 
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JA 317

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ǡȄͳͲͳͷǦ Ȅ Ǥ  Ǥ
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ǡ ǡǡ Ǥ ͹ʹǤ Ȁǡͳͷ ʹͲǦǡ ǤͶͲ ̈́ͳǡʹͲͲ̈́ͷǡͲͲͲǤͳͲͲ ̈́ʹǡͷͲͲ̈́ͳͲǡͲͲͲǤ ǡͳͷͲǡ̈́͵ǡ͹ͲͲ ̈́ͳͷǡͲͲͲǤͷͲǦ͸Ͳ ̈́ʹǡͷͲͲ̈́ͷǡͲͲͲǤ
ǡ ǡǡ Ǥ ͹͵Ǥ ȀȄͳͲͳͷǦ Ȅ͵Ǧ ͶͲǤ ͳͶǲǯǤǳ
 ǡǡǡ Ǥ
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JA 318

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͹ͶǤ ȀȄͳͲͳͷǦ Ȅ  ʹͶǤ
 ǡǡǡ Ǥ
͹ͷǤ Ȁ
ȄͳͲͳͷǦ Ȅ   ͳͺǤ
 ǡǡǡ Ǥ
C. Patronage by Surrounding Foreign and Domestic Government Clientele
͹͸Ǥ ͳͲͲǡ Ǧ  
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ǡǡǡ
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VII. Trump International Hotel Washington, D.C. restaurant BLT Prime by David Burke competes with Kimpton and ROC-worker neighboring restaurants and event spaces
A. Location Proximity
͹͹Ǥ ǡǤǤǡͳͳͲͲǡ ǡǡ
 Ǥ
͹ͺǤ ǡ ǡͳ͹͵ͳǡǡͳͲͳͷǦ Ǥ
͹ͻǤ ǡͺͷͷǡǡǤ͵ ͷǦͷͳͲǦ Ǥ ͳͷ
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JA 319

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ͺͲǤ ǡͶͺͲ͹ǡǡ ǤͷͳͲǦͳͲͳͷǦ Ǥ
ͺͳǤ Ϊ
 ǡǡʹͷͲͷǡǤ ͳͷʹͲǦ Ǥ
ͺʹǤ ǡ͹ͲͳͻǡǡǤͷͳͲǦ ͳͲͳͷǦ Ǥ
B. Comparable Restaurant Offerings
ͺ͵Ǥ Ǥ ǡ ǡǡǡ Ǥ̈́ͳ͸ǤͲͲ̈́ʹͻǤͲͲǡ ̈́ͳͻǤͲͲ̈́ͳͳͲǤͲͲǡ ̈́͵ͷǤͲͲ̈́ͳͳͲǤͲͲǤ
ͺͶǤ ȄͷͳͲǦ ȄʹǦ ʹͷ͵Ͳ̈́ʹ͹ͷǤͲͲǤ
 ǡǤ
ͺͷǤ ȄͳͲͳͷǦ Ȅ ǦǤ ̈́ͺǤͲͲ̈́ͳͺǤͲͲǡ ̈́ͷͷǤͲͲ̈́ͻͷǤͲͲǤ
 ǡǤ
ͺ͸Ǥ ȄͳͲͳͷǦ Ȅ Ǧ ǡ̈́ͳ͹ǤͲͲ
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JA 320

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ǡǡ Ǥ ͺ͹Ǥ ΪȄͳͷʹͲǦ ȄǦ ǡ ǡ Ǥ̈́ͳʹǤͲͲ̈́ͳ͹ǤͲͲǡ ̈́ͳͶǤͲͲ̈́ͳͺǤͲͲǡ̈́ʹͶǤͲͲ̈́͵͵ǤͲͲǤ
 ǡǤ ͺͺǤ ȄͳͲͳͷǦ Ȅ Ǧ Ǥ ̈́ͷͷǤͲͲ̈́͸ͷǤͲͲǤ 
ǡǤ
C. Comparable Event, Meeting and Catered Offerings
ͺͻǤ ǡǡ ǡǡǣͳ͵ǡʹͲͲ ǡ͵ͲͲͲǡ ͳͷͲǡ  ͳͳͲǤ ͳʹͻ͸ǡǡǡ ǡǡǡǡǡǡǡ
ǡ ǡǤ
ͻͲǤ  ǡ ͸ʹͲͲǤ ͷͲǢǢ ǡͳʹǢ ͺͺǤǡ ǡ Ǥ
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JA 321

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC., JILL PHANEUF, and ERIC GOODE,

-against-

Plaintiffs,

DONALD J. TRUMP, in his official capacity as President of the United States of America,

Defendant.

MEMORANDUM DECISION AND ORDER
17 Civ. 458 (GBD)

------------------------------------- x
GEORGE B. DANIELS, United States District Judge:

Plaintiffs Citizens for Responsibility and Ethics in Washington ("CREW"), Restaurant

Opportunities Centers United, Inc. ("ROC United"), Jill Phaneuf, and Eric Goode (collectively,

"Plaintiffs"), bring this suit against Defendant Donald J. Trump, in his official capacity as

President of the United States. (Second Amended Complaint ("SAC"), ECF No. 28, at 1.)

Plaintiffs principally allege that Defendant's "vast, complicated, and secret" business interests are

creating conflicts of interest and have resulted in unprecedented government influence in violation

of the Domestic and Foreign Emoluments Clauses of the United States Constitution. (SAC 1

(citing U.S. Const. art. I,§ 9, cl. 8 & art. II,§ 1, cl. 7, respectively).) Plaintiffs seek (i) a declaratory

judgment declaring that Defendant has violated and will continue to violate the Domestic and

Foreign Emoluments Clauses; (ii) an injunction enjoining Defendant from violating the

Emoluments Clauses; and (iii) an injunction requiring Defendant to release financial records in

order to confirm that he is not engaging in further transactions that would violate the Emoluments

Clauses. (Id. 20.)

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Defendant argues that Plaintiffs lack standing to sue and moves to dismiss this lawsuit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure Rule 12(b)(l). (Def.'s Mot. to Dismiss, ECF No. 34; Def.'s Mem. of Law in Supp. of Mot. to Dismiss ("Mot."), ECF No. 35, at 7.) Defendant also moves to dismiss this case for failure to state a claim under the Emoluments Clauses pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). (See Mot. at 26.)
Defendant's motion to dismiss for lack of standing under Rule 12(b)(l) is GRANTED. 1 I. FACTUAL BACKGROUND
A. The Parties Plaintiff CREW is a nonprofit, nonpartisan government ethics watchdog organized under
the laws of the State of Delaware. (SAC if 21.) CREW' s self-proclaimed mission is to "protect[]
the rights of citizens to be informed about the activities of government officials, ensur[e] the integrity of government officials, protect[] [the] political system against corruption, and reduc[e] the influence of money in politics." (Id.) It seeks to advance that mission through a combination of research, advocacy, litigation, and education, all aimed at raising public awareness about the
influence of outside special interests on public officials. (Id. if 22.) For instance, CREW is
involved in a project relating to campaign finance and ethics at the state-level, as well as researching and filing comments with government agencies related to rulemakings and other
regulatory actions, and preparing reports on "money-in-politics issues." (Id. iii! 166-67, 171.)
CREW also analyzes tax returns of nonprofit groups engaged in political activities and publishes
blog posts and reports to educate the public. (Id. if 173.) In addition, during the last several election
1 Because Plaintiffs' claims are dismissed under Rule 12(b)(l), this Court does not reach the issue of whether Plaintiffs' allegations state a cause of action under either the Domestic or Foreign Emoluments Clauses, pursuant to Rule 12(b)(6). Nor does this Court address whether the payments at issue would constitute an emolument prohibited by either Clause.
2
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cycles, CREW has filed numerous administrative complaints with the Federal Election Commission and the Department of Justice alleging violations of campaign finance laws. (Id.
ir 164.)
Plaintiff ROC United is a nonprofit, nonpartisan member-based organization organized
under the laws of the State ofNew York. (Id. if 28.) ROC United's members include nearly 25,000
restaurant employees, over 200 restaurants, and about 3,000 other dining establishments. (Id.
if 11.) ROC United provides "job training, placement, leadership development, civic engagement,
legal support, and policy advocacy" to help improve working conditions in the food service industry. (Id.) Through its RAISE project, ROC United works with restaurant owners to implement sustainable business models that support "high road" employer practices such as paying living wages, providing basic benefits, being environmentally sustainable, and providing safe and
healthy workplaces. (Id. if 181.) ROC United also owns and operates a restaurant in New York City and another in Detroit, with a forthcoming location in Washington, D.C. (Id. if 28.)
Plaintiff Jill Phaneuf, a resident of Washington D.C., works with a hospitality company to book embassy functions and other events tied to foreign governments, as well as other events "in
the Washington, D.C. market." (Id. if 15.) In particular, Phaneuf books events for two Washington
D.C. hotels-the Carlyle Hotel, located just north of Dupont Circle, and the Glover Park Hotel,
located near the area that is colloquially referred to "Embassy Row." (Id. if 15.) Phaneuf alleges
that her compensation consists of a percentage of the gross receipts of the events she books. (Id.) Plaintiff Eric Goode is a New York resident and the owner of several hotels, restaurants,
bars, and event spaces in New York City. (Id. if 18.) He owns the Maritime Hotel located in the
Chelsea neighborhood, the Bowery Hotel and Ludlow Hotel, both of which are located in the Lower East Side, and the Jane Hotel in the Meatpacking District. (Id.) Goode also owns several
3
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restaurants located in the Bowery Hotel. (Id.) Goode alleges that his hotels and restaurants have typically attrncted business from foreign governments, as well as from federal and state government officials traveling on official business. (Id.)
Defendant Donald J. Trump is the President of the United States of America. Before he was elected President, Defendant amassed ownership and controlling interests in businesses throughout the country and around the world. Defendant is the sole owner of the Trump Organization LLC and The Trump Organization, Inc. (collectively, the "Trump Organization"). (Id. , 42.) Defendant's corporations, limited-liability companies, limited partnerships, and other entities are loosely organized under the Trump Organization. (Id.)
On January 11, 2017, Defendant, then-President-elect, announced that he would tum over the "leadership and management" of the Trump Organization to his sons, Donald Trump, Jr. and Eric Trump. (Id. , 43.) Defendant also announced that he would donate all profits from foreign governments' patronage of his businesses to the U.S. Treasury. (Id.; see also Donald Trump's News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017), http://nyti.ms/2jG86w8.) Although Defendant had established a trust to hold his business assets, Plaintiffs allege that Defendant continues to own and is permitted to take distributions from the trust at any time. (SAC , 44.) Plaintiffs allege that Defendant continues to be informed of the Trump Organization's business activities and that Eric Trump provides business updates to Defendant on a quarterly basis. (Id.)
Through his various business entities, Defendant owns and receives payments from a number of properties and restaurant establishments in the United States. Of particular relevance here, Defendant owns the Trump International Hotel in Washington, D.C. and the BLT Prime, a restaurant located inside the hotel. (Id. ,, 58-59.) He also owns Trump World Tower, a
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condominium high-rise building in New York City located near the United Nations. (Id. , 90.) Trump Tower, a mixed-use skyscraper in New York City, and Trump Grill, a restaurant located inside the tower, are also among the properties owned by Defendant. (Id. ,, 46-47, 56.)
B. Defendant's Alleged Violations of the Domestic and Foreign Emoluments Clauses
Plaintiffs allege that since Defendant's inauguration earlier this year, he has violated and continues to violate the Domestic and Foreign Emoluments Clauses of the Constitution due to the ownership and controlling interests he continues to hold in the Trump Organization and other entities, and the monies he receives as a result. (Id. ,, 7, 42.)
The Domestic Emoluments Clause states that "[t]he President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them." U.S. Const. art. II, § 1, cl. 7. That clause provides that the president's compensation for his services as president shall not change during his term in office, and prohibits him from drawing any additional compensation or salary from the federal or state governments.
The Foreign Emoluments Clause states in pertinent part that "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." U.S. Const. art. I, § 9, cl. 8. That clause provides that certain federal government officials shall
5
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not receive any form of gift or compensation from a foreign government without Congress's approval. 2
Plaintiffs point to a number of examples of alleged violations of both the Domestic and Foreign Emoluments Clauses. For example, Plaintiffs allege that after the 2016 election, and under pressure from the Trump Organization, the Embassy of Kuwait in Washington D.C. moved its National Day celebration from the Four Seasons Hotel to the Trump International Hotel, spending
an estimated $40,000 to $60,000 for the event. (SAC ifif 72-74.) Other foreign diplomats and
their agents have publicly expressed a desire to patronize the Trump International Hotel and other
properties owned by Defendant to curry favor with the President. (Id. ifif 57-89.) One press
account quoted a "Middle Eastern diplomat" as saying, "[b]elieve me, all the delegations will go"
to the Trump International Hotel. (Id. if 62.) The same account quoted an "Asian diplomat" who
explained, "[w]hy wouldn't I stay at his hotel blocks from the White House, so I can tell the new president, 'I love your new hotel!' Isn't it rude to come to his city and say, 'I am staying at your competitor?"' (Id.)
Plaintiffs allege that, over the last two decades, the Kingdom of Saudi Arabia, as well as the Permanent Missions to the United Nations from India, Afghanistan, and Qatar purchased property at the Trump World Tower, paying anywhere from $4.5 million up to $8.375 million.
(Id. ifif 90-106.) Plaintiffs believe that these foreign entities continue to pay yearly common
charges for building amenities amounting to tens of thousands of dollars each year. (Id.) Plaintiffs point out that none of these countries were included in Defendant's original or revised executive
orders barring visitors from six Muslim-majority countries. (Id. if 110.)
2 For purposes ofthis motion, Defendant has conceded that he is subject to the Foreign Emoluments Clause. (See Tr. of Oral Arg., ECF No. 99, at 94:11-13; Ltr. to the Ct. from Brett A. Shumate dated October 25, 2017, ECF No. 98.)
6
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Plaintiffs allege that since 2006, Defendant has unsuccessfully sought trademark protection

in China for the use of his name in connection with building construction services. After his

application was rejected by China's Trademark Office, Defendant appealed to the Trademark

Review and Adjudication Board, the Beijing Intermediate People's Court, and the Beijing High

People's Court, to no avail. (Id. 111.) In December 2016, shortly after he was elected, Defendant

spoke directly with the President of Taiwan, suggesting that the United States might abandon the

"One China" policy that it had observed for decades. According to Plaintiffs, Defendant had

previously suggested he would end the "One China" policy unless some benefit were received in

exchange. (Id. 112.) On February 9, 2017, Defendant spoke with the President of China and

pledged to honor the "One China" policy. Five days later, China reversed course and granted

trademark protection for the "Trump" name. (Id. 113-14.) Plaintiffs also allege that the

Industrial and Commercial Bank of China, a Chinese majority-state-owned entity, is one of the

largest tenants of Trump Tower.

49.)

Plaintiffs allege that the Trump International Hotel's lease with the General Services

Administration ("GSA")-an independent agency of the United States, whose administrator is

appointed by the president-violates the Domestic Emoluments Clause. (Id. 130-44.) Prior to

taking office, GSA entered into a 60-year lease for what eventually became the site for the Trump

International Hotel. (Id. 130-31.) Section 37.19 of the lease agreement provides that

"[n]o ... elected official of the Government of the United States ... shall be admitted to any share

or part of this Lease, or to any benefit that may arise therefrom." (Id. 132.) Plaintiffs allege that

by virtue of his election, Defendant has been in breach of the lease since he took office on January

20, 2017. One week after Defendant released a proposed federal budget increasing GSA's funding

while cutting nearly all other non-defense-related spending, GSA issued a letter indicating that, in 7
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its view, there were no compliance issues with respect to the lease. As of the date the SAC was filed, GSA has not made any effort to enforce the apparent breach against the Trump Organization.
(Id. iii! 135, 140-41, 145.)
Additionally, Plaintiffs contend that Defendant has also benefitted and will continue to benefit from payments to his hotels and restaurants by foreign governments and their agents, as
well as federal, state, and local government officials. (Id. iii! 200-01.)
Plaintiffs assert that they are injured by Defendant's alleged violations of the Emoluments Clauses. Phaneuf and Goode allege that due to Defendant's ongoing financial interest in hotels and restaurants receiving payments from governmental sources, they will suffer increased competition resulting in "loss of commission-based income" and "loss of revenue[.]" (See id.
iii! 225, 227, 234.) Similarly, ROC United alleges that its restaurant and restaurant-employee members have suffered injury in the form of "lost business, wages, and tips." (Id. if 13.) CREW
claims it has been harmed by having to divert and expend its resources to counteract the alleged
violations, impairing its ability to accomplish its mission. (Id. if 153.)
II. LEGAL STANDARD UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(l) "Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a
claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat 'l Aust!. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quotation marks omitted), ajf'd, 561U.S.247 (2010). The party invoking the benefit of federal jurisdiction bears the burden of establishing the existence of that jurisdiction. Sharkey v. Quarantillo, 541 F.3d 75, 82-83 (2d Cir. 2008) (citation omitted).
In deciding a motion to dismiss "pursuant to Rule 12(b)(1), ... the Court must accept as true all material factual allegations in the complaint, but should refrain from drawing any
8
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inferences in favor of the party asserting jurisdiction." People Unitedfor Children, Inc. v. City of New York, 108 F. Supp. 2d 275, 283 (S.D.N.Y. 2000) (citingAtl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)). "[U]nder Rule 12(b)(l), [a court is] permitted to rely on non-conclusory, non-hearsay statements outside the pleadings." MES., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013). III. STANDING
Central to the question of whether this Court has subject-matter jurisdiction over this case is whether Plaintiffs have legal standing to sue. See Cortlandt St. Recovery Corp. v. Hellas Telecomms. I, S.a.r.l, 790 F.3d 411, 416-17 (2d Cir. 2015). Indeed, "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Raines v. Byrd, 521 U.S. 811, 818 (1997). As the Supreme Court has explained, "[t]he law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches[,]" Clapper v. Amnesty Int 'l USA, 568 U.S. 398, 408 (2013), and "ensure[s] that federal courts do not exceed their authority as it has been traditionally understood." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Accordingly, the standing inquiry is "especially rigorous" where, as here, "reaching the merits of the dispute would force [this Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Clapper, 568 U.S. at 408 (citation and quotation marks omitted).
The "irreducible constitutional minimum of standing" consists of three clements: "(I) 'an injury in fact' to 'a legally protected interest' that is both '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,' (2) 'a causal connection between the injury
9
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and the conduct complained of,' and (3) that it is 'likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision."' Crupar-Weinmann v. Paris Baguette Am.,

Inc., 861 F.3d 76, 79 (2d Cir. 2017) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)). As the parties invoking this Court's jurisdiction, Plaintiffs bear the burden of

establishing standing, and at the pleading stage, they must do so by "clearly alleg[ing] facts

demonstrating each element." Spokeo, 136 S. Ct. at 1547 (citation omitted).

A. ROC United, Phaneuf, and Goode Lack Article III Standing

Defendant contends that Plaintiffs ROC United, Phaneuf, and Goode (the "Hospitality

Plaintiffs") lack standing to bring their claims and that their alleged injuries do not fall within the

zone of interests of the Emoluments Clauses. (Mot. at 8-26.)

1. The Hospitality Plaintiffs' Competitor Standing Argument Fails

The Hospitality Plaintiffs attempt to rely on the competitor standing doctrine to establish

injury in fact. Defendant argues that these Plaintiffs lack competitor standing because they fail to

establish that the challenged governmental activity has caused "an actual or imminent increase in

competition, which increase ... will almost certainly cause an injury in fact." (Mot. at 20-21

(citing Sherley v. Sebelius, 610 F.3d 69, 73 (D.C. Cir. 2010)).)

"The Supreme Court has found cognizable injuries to economic competitors." In re US.

Catholic Conference, 885 F.2d 1020, 1029 (2d Cir. 1989) (citation omitted); see Clarke v. Sec.

Indus. Ass'n, 479 U.S. 388, 403 (1987); Ass'n ofData Processing Serv. Orgs., Inc. v. Camp, 397

U.S. 150, 152 (1970)). The doctrine of competitor standing recognizes that economic actors

"suffer [an] injury in fact when agencies lift regulatory restrictions on their competitors or

otherwise allow increased competition against them." Sherley, 610 F.3d at 72 (citation and

quotation marks omitted). 10

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The doctrine traces its origin to a time when financial institutions started diversifying their service offerings and began competing with firms that had traditionally provided those services. For instance, in Data Processing, an association of data processing service providers challenged a ruling by the Comptroller of the Currency of the United States allowing banks to provide such services and compete in the same market. 397 U.S. at 151. The Court held that the association had standing to bring its claim because it properly alleged that the rule caused plaintiffs "injury in fact" in the form of future and actual loss of profits. Id. at 152; see also Clarke, 479 U.S. at 403 (granting standing to trade association composed of securities brokers, dealers, and underwriters to challenge governmental ruling that banks could act as discount brokers); Inv. Co. Inst. v. Camp, 401 U.S. 617, 620-21 (1971) (granting standing to association of open-end investment companies to challenge ruling that allowed bank entry into the field of collective investment funds); Arnold Tours, Inc. v. Camp, 400 U.S. 45, 46 (1970) (holding travel agents had standing to challenge ruling to permit banks to offer travel services).
The Hospitality Plaintiffs argue that the competitor standing doctrine only requires a plaintiff to '"show that he personally competes in the same arena' with the party to whom the defendant has unlawfully bestowed a benefit." (Pls.' Mem. of Law in Opp'n to Mot. ("Opp'n"), ECF No. 57, at 11.) They allege that they compete for government business in the Washington D.C. and New York City restaurant and hotel markets and that they have and will be harmed "due to foreign states, the United States, or state or local governments patronizing establishments with
financial connections to Defendant rather than" Plaintiffs. (See SAC iii! 13, 17, 19, 194, 198, 227,
234.) Defendant argues that the Hospitality Plaintiffs' allegations are far too speculative to give rise to competitor standing and that they have failed to sufficiently allege that they "personally compete[]" with Defendant's hotels and restaurants. (Mot. at 21 (citing US. Catholic Conference,
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885 F.2d at 1029).) In response, the Hospitality Plaintiffs cite declarations from, among others, Goode, ROC United's restaurant members, and industry experts explaining how and in which ways they compete with Defendant's businesses. (See, e.g., Opp'n at 17-18.)
Plaintiffs have failed to properly allege that Defendant's actions caused Plaintiffs competitive injury and that such an injury is redressable by this Court. As noted, Article III "requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant," and for which "prospective relief will remove the harm." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 45 (1976); see also Liberty Glob. Logistics LLC v. US. Mar. Admin., No. 13-CV-0399 (ENV), 2014 WL 4388587, at *5-6 (E.D.N.Y. Sept. 5, 2014) (finding plaintiff had established an injury in fact due to the "well-established concept of competitors' standing" but nonetheless dismissing certain claims for lack of causation) (citation omitted).
In Simon, the plaintiffs were indigent individuals and organizations representing indigents who challenged an IRS rule allowing favorable tax treatment to a nonprofit hospital that only offered emergency-room services to indigents. 426 U.S. at 28. The plaintiffs argued that the IRS rule caused them injury because it "encouraged" hospitals to deny other services to indigents. Id. at 42. The Court held that this alleged injury lacked traceability and redressability because of intervening causal factors. The Court found it "purely speculative whether ... denials of service ... [could] fairly ... be traced to petitioners' 'encouragement' or instead result[ed] from decisions made by the hospitals without regard to the tax implications." Id at 42-43. The Court found it "equally speculative" to conclude that "victory in this suit would result in [plaintiffs] receiving the hospital treatment they desire." Id. at 43, 45-46. Rather than increasing access for indigent
12
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patients, hospitals could simply discontinue such programs altogether and become profit-funded institutions, thereby exacerbating plaintiffs' injury. Id. at 45-46.
Here, the Hospitality Plaintiffs argue that Defendant has adopted "policies and practices that powerfully incentivize government officials to patronize his properties in hopes of winning his affection." (Opp 'n at 16 (emphasis added).) Yet, as in Simon, it is wholly speculative whether the Hospitality Plaintiffs' loss of business is fairly traceable to Defendant's "incentives" or instead results from government officials' independent desire to patronize Defendant's businesses. Even before Defendant took office, he had amassed wealth and fame and was competing against the Hospitality Plaintiffs in the restaurant and hotel business. It is only natural that interest in his properties has generally increased since he became President. As such, despite any alleged violation on Defendant's part, the Hospitality Plaintiffs may face a tougher competitive market overall. Aside from Defendant's public profile, there are a number of reasons why patrons may choose to visit Defendant's hotels and restaurants including service, quality, location, price and other factors related to individual preference. Therefore, the connection between the Hospitality Plaintiffs' alleged injury and Defendant's actions is too tenuous to satisfy Article Ill's causation requirement. Bennett v. Spear, 520 U.S. 154, 167 (1997) (to establish standing, "the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court") (citing Lujan, 504 U.S. at 560-61); Clapper, 568 U.S. at 413 ("[W]e have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.")
Moreover, the Hospitality Plaintiffs cannot establish "that it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Bennett, 520 U.S. at 167 (citation omitted). Plaintiffs seek an injunction preventing Defendant from violating the
13
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Emoluments Clauses. (SAC i-120.) They argue that such injunction would "stop[] the source of intensified competition [and] provide redress." (Opp'n at 26.) Even if it were determined that the Defendant personally accepting any income from the Trump Organization's business with foreign and domestic governments was a violation of the Emoluments Clauses, it is entirely "speculative," Bennett, 520 U.S. at 167, what effect, if any, an injunction would have on the competition Plaintiffs claim they face. 3
Plaintiffs are likely facing an mcrease m competition in their respective markets for business from all types of customers-government and non-government customers alike-and there is no remedy this Court can fashion to level the playing field for Plaintiffs as it relates to overall competition. Were Defendant not to personally accept any income from government business, this Court would have no power to lessen the competition inherent in any patron's choice of hotel or restaurant. As explained more fully below, the Emoluments Clauses prohibit Defendant from receiving gifts and emoluments. They do not prohibit Defendant's businesses from competing directly with the Hospitality Plaintiffs. Furthermore, notwithstanding an injunction from this Court, Congress could still consent and allow Defendant to continue to accept payments from foreign governments in competition with Plaintiffs.
Thus, while a court order enjoining Defendant may stop his alleged constitutional violations, it would not ultimately redress the Hospitality Plaintiffs' alleged competitive injuries.4
3 For example, even if Defendant honored his pledge to establish a trust and donate all profits from foreign
governments' business to the U.S. Treasury, (Mot. at 5; see also SAC iii! 43--44), foreign government
officials may still patronize Defendant's restaurants and hotels. 4 ROC United contends that it has associational standing to bring this lawsuit because it has alleged that its members have been "injured by the [D]efendant's distortion of competition." (Opp'n at 24-25.) To have associational standing, a plaintiff organization must meet the following requirements: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires
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2. The Hospitality Plaintiffs' Competitive Injuries Do Not Fall Within the Zone of Interests of the Emoluments Clauses
The zone of interests doctrine demonstrates that the Hospitality Plaintiffs are not the right parties to bring a claim under the Emoluments Clauses. Beyond the Article III requirements, "the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing." Valley Forge Christian Coll. v. Ams. United for Separation ofChurch and State, Inc., 454 U.S. 464, 474 (1982). "One of these is the requirement that the plaintiff establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the zone of interests sought to be protected by the statut[e] [or constitutional guarantee] whose violation forms the legal basis for his complaint." Wyoming v. Oklahoma, 502 U.S. 437, 468-69 (1992) (emphases in original) (citation and quotation marks omitted). While it is true that the "zone of interests" test first appeared in cases brought under the Administrative Procedure Act, 5 U.S.C. § 702, see Data Processing, 397 U.S. at 153, the Supreme Court has "made clear that the same test similarly applies to claims under the Constitution in general[.]" Wyoming, 502 U.S. at 469. In fact, the Supreme Court has "indicated that it is more strictly applied when a plaintiff is proceeding under a constitutional ... provision instead of the generous review provisions of the APA." Id. (emphasis in original) (citation and quotation marks omitted).
Nothing in the text or the history of the Emoluments Clauses suggests that the Framers intended these provisions to protect anyone from competition. The prohibitions contained in these Clauses arose from the Framers' concern with protecting the new government from corruption and undue influence. Indeed, at the time of the Founding, the new republic was conscious of the
the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm 'n, 432 U.S. 333, 343 (1977). ROC United lacks associational standing because none of its members-neither the restaurants nor restaurant workers-allege an injury in fact caused by Defendant's alleged Emoluments Clause violations that will likely be redressed by a favorable decision.
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European custom of bestowing gifts and money on foreign officials. The Framers, who fought a war to gain their independence from British rule, wanted government officials to avoid future undue influence. As Edmund J. Randolph explained at the Virginia Ratifying Convention,
The [Foreign Emoluments Clause] restrains any person in office from accepting of any present or emolument, title or office, from any foreign prince or state .... This restriction is provided to prevent corruption. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 465-66 (2d ed. 1891); (see also Br. of Former Gov't Ethics Officers as Amici Curiae Supporting Pls., ECF No. 71-1, at 1 (stating that the Clauses "are an important check on corruption, and a beacon for good governance.").) The Framers were not only concerned with foreign corruption, but they were also wary of undue influence from within. To ensure the president's independence from the states and additional financial incentives from the federal government, the Framers included in the Constitution the Domestic Emoluments Clause. That clause was meant to ensure that the president has "no pecuniary inducement to renounce or desert the independence intended for him by the Constitution." The Federalist No. 73 (Alexander Hamilton). Evidently, the Framers were concerned that [T]he legislature, with a discretionary power over the salary and emoluments of the [president], could render him as obsequious to their will as they might think proper to make him. They might, in most cases, either reduce him by famine, or tempt him by largesses, to surrender at discretion his judgment to their inclinations. Id. The Clause also helps to ensure presidential impartiality among the states given that"[n]either the Union, nor any of its members, will be at liberty to give, nor will he be at liberty to receive, any other emolument than that which may have been determined by the first act." Id.
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Given this history, there can be no doubt that the intended purpose of the Foreign Emoluments Clause was to prevent official corruption and foreign influence, while the Domestic Emoluments Clause was meant to ensure presidential independence. Therefore, the Hospitality Plaintiffs' theory that the Clauses protect them from increased competition in the market for government business must be rejected, especially when (1) the Clauses offer no protection from increased competition in the market for non-government business and (2) with Congressional consent, the Constitution allows federal officials to accept foreign gifts and emoluments, regardless of its effect on competition. With Congress's consent, the Hospitality Plaintiffs could still face increased competition in the market for foreign government business but would have no cognizable claim to redress in court. There is simply no basis to conclude that the Hospitality Plaintiffs' alleged competitive injury falls within the zone of interests that the Emoluments Clauses sought to protect.
The Hospitality Plaintiffs therefore lack Article III standing. B. CREW Fails to Adequately Allege an Injury In Fact
Defendant contends that Plaintiff CREW' s claims should be dismissed because it has failed to adequately allege an injury in fact and thus also lacks standing to sue. (Mot. at 8.) An organization like CREW can have standing in one of two ways. As noted, an organization may have associational standing to sue on behalf of its members if some particular member of the organization would have had standing to bring the suit individually. N. Y Civil Liberties Union v. N. YC. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012). Alternatively, an organization "may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Warth v. Seldin, 422 U.S. 490, 511 (1975). "Under this theory of 'organizational' standing, the organization is just another person-albeit a
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legal person-seeking to vindicate a right." N. Y Civil Liberties Union, 684 F.3d at 294. In either

case, "the organization must 'meet the same standing test that applies to individuals by showing

[an] actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely

to be redressed by a favorable court decision."' Irish Lesbian & Gay Org. v. Guiliani, 143 F.3d

638, 649 (2d Cir. 1998) (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)).

In other words, "[a]n organization's abstract concern with a subject that could be affected by an

adjudication does not substitute for the concrete injury required by Art. III." Simon, 426 U.S. at

40.

CREW does not allege that it has any members whose interests it seeks to represent here,

nor does it otherwise purport to have associational standing. Rather, it asserts it has standing to

bring this action because it suffers an injury in its own right, namely a "diversion[] of CREW's

communications, legal, and research resources ... and [the] impairment of its programmatic

functions." (Opp'n at 27.) CREW claims that by accepting payments to his businesses that are

"rarely public," Defendant has deprived it of information concerning the financial support he

receives from various governmental sources, "necessitating time consuming, more expensive, and

less effective research to maintain its work." (Id.) CREW also asserts that it has had to devote

significant resources to identify and counteract Defendant's alleged violations of the Emoluments

Clauses, including through the use of "every member of CREW's research team on a near-daily

basis" and "the hiring of two additional senior attorneys," as well as its efforts to explain the

alleged violations to stakeholders, including the press, and assist and counsel others in

counteracting Defendant's alleged violations. (Id. at 28.) CREW claims that these expenditures

have all come "at the detriment of CREW's efforts to perform mission-critical work that it would

otherwise perform." (Id.) 18

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Defendant argues that CREW lacks standing because it fails to allege sufficient injury in fact resulting from Defendant's alleged violations of the Emoluments Clauses. (Mot. at 8.) In particular, Defendant claims that CREW's voluntary diversion of resources, and the type of injury it claims to have suffered as a result, is "self-inflicted" and too abstract to confer standing. (Id. at 8-9.)
CREW's organizational standing argument relies principally on the Supreme Court's decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), and its progeny. In Havens, Housing Opportunities Made Equal ("HOME"), a nonprofit corporation, brought suit alleging that the defendants tried to steer members of racial and ethnic groups to buildings occupied primarily by members of the same groups and away from buildings and neighborhoods inhabited primarily by members of other races or groups in violation of the Fair Housing Act of 1968. Id. at 366-67 & n.1. The organization's mission was to increase equal opportunity in housing through, among other ways, operating a housing counseling service and investigating and referring complaints concerning housing discrimination. HOME argued that it had standing because these activities were frustrated by the defendants' conduct. Id. at 368-69. The Court held that HOME would suffer an injury in fact if the defendants' racial steering practices "perceptibly impaired" its ability to provide counseling and referring services to its members: "[s]uch concrete and demonstrable injury to the organization's activities-with the consequent drain on the organization's resources-constitutes far more than simply a setback to the organization's abstract social interests[.]" Id. at 379.
Following Havens, the Second Circuit has held that an organization has standing where the defendant's conduct or policy interferes with or burdens an organization's ability to carry out its usual activities. See, e.g., Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster
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Bay, 868 F.3d 104, 110 (2d Cir. 2017) ("[I]f the Ordinance achieves one of its principal objectives-disbursement of day laborers-[the organization] will inevitably face increased difficulty in meeting with and organizing those laborers."); NY Civil Liberties Union, 684 F.3d at 295 (the organization's ability to represent its clients in administrative hearings was "impeded" by the defendant's policy barring public access to such hearings). These decisions found organizational standing under Havens appropriate where there was a clear, articulable nexus between the challenged conduct or policy and its effects on the organization's ability to carry out specific functions within its purview.
Other Second Circuit decisions have extended Havens beyond the circumstance where an organization's activities are impaired per se. Those cases establish that an organization has standing where it is forced to expend resources to prevent some adverse or harmful consequence on a well-defined and particularized class of individuals. See, e.g., Centro, 868 F.3d at 110 (a local ordinance regulating the ability of day laborers to solicit employment will "force" the organization to expend greater resources since "if the laborers are dispersed, it will be more costly to reach them"); Olsen v. Stark Homes, Inc., 759 F.3d 140, 158 (2d Cir. 2014) (the plaintiff, a nonprofit corporation devoted to fair-housing advocacy and counseling, expended resources to investigate its clients' housing discrimination claims and advocate on their behalf); Mental Disability Law Clinic, Touro Law Ctr. v. Hogan, 519 F. App'x 714, 716-17 (2d Cir. 2013) (the plaintiff organization expended resources to challenge the state mental health agency's policy of asserting counterclaims for outstanding treatment charges against patients who sued the agency and thereby discouraged patients from bringing such suits). Though the plaintiff organizations in these cases each pressed somewhat different claims, the common thread is clear: an organization was compelled to act, "with a consequent drain on [its] resources[,]" Havens, 455 U.S. at 379, to
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remedy and counter the adverse consequences flowing from the defendant's conduct or policy. Put differently, the organization's expenditure of resources is prompted by a desire to prevent or limit some harm to a "legally protected interest." Lujan, 504 U.S. at 560.
Here, CREW fails to allege either that Defendant's actions have impeded its ability to perform a particular mission-related activity, or that it was forced to expend resources to counteract and remedy the adverse consequences or harmful effects of Defendant's conduct. As noted, the plaintiff organizations in the cases cited by CREW were all driven to expend resources they would not have otherwise spent to avert or remedy some harm to a definable class ofprotected interestsfor example, the right of individuals to pursue housing free from discrimination, or of day laborers to solicit employment-caused by the defendant's actions or policies. CREW, by contrast, may have diverted some of its resources to address conduct it may consider unconstitutional, but which has caused no legally cognizable adverse consequences, tangible or otherwise, necessitating the expenditure of organizational resources. 5 See New York v. US. Army Corps of Eng'rs, 896 F. Supp. 2d 180, 195 (E.D.N.Y. 2012) (rejecting argument that organization was injured by having to divert resources where "no one's concrete interests [were] invaded, [and thus] there [was] no initial injury to counter"). CREW has therefore failed to allege that it has been "perceptibly impaired" by Defendant's actions. Havens, 455 U.S. at 379. Divorced from any concrete and legally cognizable impact caused by Defendant's conduct, CREW' s allegations of injury amount to no more than an "abstract concern with a subject that could be affected by an adjudication."
5 Although CREW's co-plaintiffs allege personal harm in the form of increased competition, as explained above, those injuries are not legally cognizable since they are neither fairly traceable to Defendant's conduct, nor are they capable of being redressed by a favorable decision on the merits. Moreover, as explained above, the harm they allege falls outside the Emoluments Clauses' zone of interests since increased competition is not an interest that those Clauses were designed to protect. See Part III.A.2.
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Simon, 426 U.S. at 40. As the Supreme Court has made clear, "a mere 'interest in a problem,' no

matter how longstanding the interest and no matter how qualified the organization is in evaluating

the problem, is not sufficient" to confer standing on an organization. Sierra Club v. Morton, 405

U.S. 727, 739 (1972).

To be sure, CREW alleges that the time, money, and attention it has diverted to this

litigation from other projects have placed a significant drain on its limited resources. But such an

allegation, by itself, is insufficient to establish an injury in fact. CREW's decision to investigate

and challenge Defendant's actions under the Domestic and Foreign Emoluments Clauses at the

expense of its other initiatives reflects a choice about where and how to allocate its resources-

one that almost all organizations with finite resources have to make. 6 (See

175 ("[I]t is

essential that CREW prioritize Defendant's violations of the Emoluments Clauses and conflicts of

interest over those of lower level officials") (emphasis added).) If CREW could satisfy the

standing requirement on this basis alone, it is difficult to see how any organization that claims it

has directed resources to one project rather than another would not automatically have standing to

sue. Under CREW's unbounded definition of standing, for example, a news organization could

sue the President by alleging that one or more of his statements forced it to divert resources away

from a different story it might have pursued. Surely something more is required to satisfy Article

III standing, particularly where, as here, the plaintiff organization purports to be acting on behalf

of the public as a whole. (See id. 154.)

6 Similarly unavailing are CREW's allegations that it has had to expend resources responding to press inquiries. Again, those allegations concerning where and how CREW allocates its resources are insufficient to constitute a legally cognizable injury in fact insofar as they are entirely self-inflicted and not borne out of CREW's need to remedy any particular adverse consequence or harmful effect of Defendant's conduct.
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Moreover, CREW's entire reason for being is to investigate and combat corruption and reduce the influence of money in politics through, among other things, education, advocacy, and
litigation. (Id. iii! 21-22.) CREW is thus not wasting resources by educating the public and issuing
statements concerning the effects of Defendant's alleged constitutional violations or even by filing suit; this is exactly how an organization like CREW spends its resources in the ordinary course. It therefore stands to reason that spending resources to investigate and challenge Defendant's alleged violations of the Domestic and Foreign Emoluments Clauses does not itself impose on CREW a concrete or particularized injury. See Doe v. Vill. of Mamaroneck, 462 F. Supp. 2d 520, 542 (S.D.N.Y. 2006); Small v. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 95 (E.D.N.Y. 2005).
The Second Circuit's decision in Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898 (2d Cir. 1993), which CREW relies on, (Opp'n at 28-29), does not suggest a contrary result. In Ragin, the plaintiff organization brought suit under the Fair Housing Act challenging the defendant's racially discriminatory advertising practices. 6 F.3d at 901. The court found that the organization had standing because it "was forced" to spend time investigating and remedying the advertisements, including through filing an administrative complaint and a lawsuit in federal court, which prevented it from devoting more time and energy to its "regular tasks" of providing counseling and referral services. Id. at 905. In addition, the court noted, "[t]hat some of the [organization's] time was spent exclusively on litigating this action [did] not deprive [it] of standing." Id. (emphasis added). Here, CREW alleges that it was injured by having to divert resources to investigate and counteract Defendant's constitutional violations. But nearly all of the resources it expended were either in anticipation or direct furtherance of this litigation. Ragin is thus distinguishable.
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Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011), is similarly distinguishable. There, the plaintiff organization brought suit under 42 U.S.C. § 1983 and the First and Fourteenth Amendments challenging an administrative rule pursuant to which taxi drivers' licenses were automatically suspended upon arrest for certain enumerated criminal charges. 644 F.3d at 149. The court recognized a circuit split on the issue of whether "litigation expenses alone [can] constitute damage sufficient to support standing" but reaffirmed Ragin as "good law" and observed that contrary decisions were "largely concerned with the capacity of organizations to 'manufacture' standing by bringing a suit." Id. (citations omitted). One such case, for example, involved a claim by an organization that it "suffered palpable injury when it was forced to divert resources to investigat[e] ... classified advertisements placed in the defendant newspapers ... for evidence of discrimination." Id. (quoting Fair Haus. Council ofSuburban Phila. v. Montgomery Newspapers, 141 F.3d 71, 78 (3d Cir. 1998)). In Nnebe, the court noted that the plaintiff organization was not "trolling for grounds to litigate" but rather "allocated resources to assist drivers only when another party-the City-ha[d] initiated proceedings against one of its members." 644 F.3d at 157-58.
Unlike the plaintiff organization in Nnebe, CREW did not expend resources in response to an "unbidden injury." Centro, 868 F.3d at 122 (Jacobs, J., dissenting). Rather, it sought out and voluntarily undertook efforts to investigate, research, and ultimately bring suit over Defendant's allegedly unlawful conduct, raising the prospect of manufactured standing, about which courts are justifiably concerned. See Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 107 (1998) ("Obviously, ... a plaintiff cannot achieve standing to litigate a substantive issue for the cost of bringing suit."); Spann, 899 F.2d at 27 ("An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit. Were the rule
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otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation.") (Ginsburg, J.).
Since Plaintiff CREW has failed to adequately plead a cognizable injury in fact, it lacks standing to sue under Article III. IV. PRUDENTIAL CONSIDERATIONS
In addition to the other grounds upon which he seeks dismissal, Defendant argues that Plaintiffs' claims under the Foreign Emoluments Clause should be dismissed for certain prudential reasons. First, Defendant argues that Plaintiffs' claims are better left resolved through the "political process," rather than the courts, because Congress is "far better equipped" to address whether Defendant's particular activities violate the Foreign Emoluments Clause. (Opp'n at 50.) Defendant points out that Congress has more tools at its disposal, including the ability to legislate and consent to Foreign Emoluments Clause violations. (Id.)
Defendant seems to argue, without explicitly stating so, that the "political question" doctrine bars Plaintiffs' claims. The doctrine would suggest that Plaintiffs' suit presents a political issue that should be resolved between Congress and the President, without any preemptive interference from the Judiciary.
Plaintiffs' Foreign Emoluments Clause claims do implicate political question concerns. The political question doctrine has its roots in the separation of powers and is ultimately a doctrine of justiciability. It bars courts from deciding cases that are inappropriate for judicial resolution based on a lack of judicial authority or competence, or other prudential considerations. As originally articulated by the Supreme Court in Baker v. Carr, a case may be dismissed on the basis of the political question doctrine if there exists: "[l] a textually demonstrable constitutional commitment of the issue [at hand] to a coordinate political department; [2] a lack of judicially
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discoverable and manageable standards for resolving it; [3] the impossibility of deciding without

an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of

a court's undertaking independent resolution without expressing lack of the respect due coordinate

branches of government; [5] an unusual need for unquestioning adherence to a political decision

already made; or [6] the potentiality of embarrassment from multifarious pronouncements by

various departments on one question." 369 U.S. 186, 217 (1962).

Each of these factors may serve as an independent ground for dismissal. See Vieth v.

Jubelirer, 541 U.S. 267, 277-78 (2004). The first factor addresses a court's legal authority to

resolve the particular issue presented, the second and third focus on the Judiciary's competence to

do so, and the final three concern prudential considerations that may counsel against a court's

resolution of the issue. The Baker factors are generally viewed as being listed in descending order

of importance. Vieth, 541 U.S. at 278. In fact, cases applying Baker have placed a disproportionate

emphasis on the first two factors. See Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir. 2005)

(collecting cases).

Here, the issue presented under the Foreign Emoluments Clause is whether Defendant can

continue to receive income from his business with foreign governments without the consent of

Congress. As the explicit language of the Foreign Emoluments Clause makes clear, this is an issue

committed exclusively to Congress. As the only political branch with the power to consent to

violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine

whether, and to what extent, Defendant's conduct unlawfully infringes on that power. If Congress

determines that an infringement has occurred, it is up to Congress to decide whether to challenge

or acquiesce to Defendant's conduct. As such, this case presents a non-justiciable political

question.

26
JA 349

CasCe a1s:1e71-8cv-4-07044, 5D8o-cGuBmDentD2o6c-u2m, 0e4n/t2140/2301F8i,le2d281724/2615/,1P7agPea6g0eo2f767of 29
Defendant also suggests that Plaintiffs' case should be dismissed because Congress has yet to take any action with respect to Defendant's alleged violations of the Foreign Emoluments Clause. Defendant notes that if Congress wanted to do something about Defendant's conduct, it could. (Opp'n at 50.) Congress could, for example, enact legislation codifying its views by statute or expand the Constitution's conflict-of-interest protections. (Id.) But, because Congress has yet to take any action with respect to Defendant's alleged violations, Defendant contends that Plaintiffs' Foreign Emoluments Clause claims are premature. (See id.)
Plaintiffs' Foreign Emoluments Clause claims are indeed not ripe for judicial review. Ripeness is a different justiciability doctrine designed to prevent courts from prematurely adjudicating cases. See Abbot Labs. v. Gardner, 387 U.S. 136, 148--49 (1976). In Goldwater v. Carter, 444 U.S. 996 (1979), Justice Powell articulated a test to be used in cases involving a confrontation between the legislative and executive branches to determine whether the issue presented was ripe for review, which is particularly instructive here. In that case, members of Congress brought suit against President Carter after he announced his intention to unilaterally terminate a mutual defense treaty between the United States and Taiwan. Goldwater v. Carter, 617 F.2d 697, 700-01 (D.C. Cir. 1979), vacated, 444 U.S. 996 (1979). The plaintiffs there claimed that such action, without ratification from the Senate, infringed upon Congress's treaty power. Id. The D.C. Circuit reversed the lower court's ruling and held that the President did not exceed his constitutional authority in terminating the treaty. Id. at 709.
In remanding the case with instructions to dismiss the complaint, Justice Powell stated that "a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority." Goldwater, 444 U.S. at 996. He noted further that "[t]he Judicial Branch should not decide issues affecting the allocation of
27
JA 350

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power between the President and Congress until the political branches reach a constitutional impasse.11 Id. In the Goldwater case, Justice Powell explained that nu such impasse had been reached because Congress had yet to take any action either denouncing or approving the President's actions. 7 Id. at 998.
Here, Plaintiffs' suit implicates a similar concern regarding a conflict between two coequal branches of government that has yet to mature. As indicated earlier, the Foreign Emoluments Clause makes clear that Congress, and Congress alone, has the authority to consent to violations ofthat clause. Plaintiffs' principal allegation is that Defendant has completely ignored this balance
of power by continuing to accept emoluments without Congressional approval. (SAC iii! 39--42.)
As such, this case involves a conflict between Congress and the President in which this Court should not interfere unless and until Congress has asserted its authority and taken some sort of action with respect to Defendant's alleged constitutional violations of its consent power.8
At this stage, it would be "both premature and presumptuous for [a court] to render a decision on the issue of [whether Congress's consent] is required at this time or in the near future when ... Congress itself has provided no indication whether it deems such [consent] either necessary, on the one hand, or imprudent, on the other." Dellums v. Bush, 752 F. Supp. 1141, 1149-50 (D.D.C. 1990). If Congress wishes to confront Defendant over a perceived violation of the Foreign Emoluments Clause, it can take action. However, if it chooses not to, "it is not [this Court's] task to do so." Goldwater, 444 U.S. at 998. This Court will not tell Congress how it
7 Subsequent cases have followed Justice Powell's reasoning in Goldwater in dismissing a case on ripeness grounds. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985) (Ginsburg, J., concurring); Dellums v. Bush, 752 F. Supp. 1141, 1149-51(D.D.C.1990); Lowry v. Reagan, 676 F. Supp. 333, 339 (D.D.C. 1987). 8 Congress is not a potted plant. It is a co-equal branch of the federal government with the power to act as a body in response to Defendant's alleged Foreign Emoluments Clause violations, if it chooses to do so.
28
JA 351

CasCe a1s:1e71-8cv-4-07044, 5D8o-cGuBmDentD2o6c-u2m, 0e4n/t2140/2301F8i,le2d281724/2615/,1P7agPea6g2eo2f967of 29

should or should not assert its power in responding to Defendant's alleged violations ofthe Foreign Emoluments Clause. In short, unless and until Congress speaks on this issue, Plaintiffs' Foreign Emoluments Clause claims are not ripe for adjudication.
V. CONCLUSION Defendant's motion to dismiss is GRANTED. Accordingly, Plaintiffs' claims and this case
are DISMISSED.

Dated: New York, New York December 21, 2017

SO ORDERED.

29
JA 352

CaCseas1e:1178--c4v7-040, 4D5o8c-uGmBeDnt 2D6o-c2u, m04e/n2t41/200418F, i2le2d871426/251,/P17ageP6a3goef167of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------)(
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS UNITED, INC. JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
-against-

I

--

; DOClJlvlE'-i'f

I
I ;::1 .L. ,

()l>,,r . l' ,_ '"

17 CIVIL 458 (GBD)

DONALD J. TRUMP. In his official capacity as President of the United States of America,
Defendant.
-----------------------------------------------------------)(

JUDGMENT

Defendant having moved to dismiss this lawsuit for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. Rule 12(b)(l), Defendant also moves to dismiss this case for failure to

state a claim under the Emoluments Clauses pursuant to Fed. R. Civ. P. Rule 12(b)(6), and the

matter having come before the Honorable George B. Daniels, United States District Judge, and

the Court, on December 21, 2017, having rendered its Memorandum Decision and Order

granting Defendants' motion to dismiss for lack of standing under Rule 12(b)(l); accordingly,

dismissing Plaintiffs' claims and this case, it is,

ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the

Court's Memorandum Decision and Order dated December 21, 2017, Defendant's motion to

dismiss for lack of standing under Rule 12(b)(l) is granted; accordingly, Plaintiffs' claims and

this case are dismissed.

Dated: New York, New York December 21, 2017

RUBY J. KRAJICK / )

'

,/"' //

BY:

THIS DOCUMENT WAS
ONTHEDOCKETON JA 353

CaCseas1e:1178--c4v7-040, 4D5o8c-uGmBeDnt 2D6o-c2u, m04e/n2t41/200518F, i2le2d870426/156,/P18ageP6a4goef167of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, RESTAURANT OPPORTUNITIES CENTERS (ROC) UNITED, INC., JILL PHANEUF, and ERIC GOODE,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States of America,
Defendant.

Civil Action No. 1:17-cv-00458-GBD

PLAINTIFFS’ NOTICE OF APPEAL Notice is hereby given that all plaintiffs in this case appeal to the United States Court of Appeals for the Second Circuit from this Court’s order of December 21, 2017 (ECF No. 103), which granted the defendant’s motion to dismiss, as well as the accompanying final judgment entered that same day (ECF No. 104).

JA 354

CaCseas1e:1178--c4v7-040, 4D5o8c-uGmBeDnt 2D6o-c2u, m04e/n2t41/200518F, i2le2d870426/156,/P18ageP6a5goef267of 3

Dated: February 16, 2018
LAURENCE H. TRIBE* Carl M. Loeb University Professor and Professor of Constitutional Law Harvard Law School 1575 Massachusetts Avenue Cambridge, MA 02138 (617) 495-1767 ZEPHYR TEACHOUT* Associate Professor of Law Fordham Law School 150 West 62nd Street New York, NY 12580 (646) 312-8722 ERWIN CHEMERINSKY* Dean of the School of Law University of California, Berkeley 215 Boalt Hall Berkeley, CA 92697 (510) 642-6483
*Affiliations noted for identification purposes only

Respectfully submitted,
GUPTA WESSLER PLLC
By: /s/ Deepak Gupta Deepak Gupta
NORMAN L. EISEN RICHARD W. PAINTER NOAH BOOKBINDER STUART C. MCPHAIL ADAM J. RAPPAPORT Citizens for Responsibility and Ethics in Washington 455 Massachusetts Avenue, N.W. Washington, DC 20001 (202) 408-5565
Attorneys for Plaintiffs Citizens for Responsibility and Ethics in Washington (CREW)
DEEPAK GUPTA** JONATHAN E. TAYLOR JOSHUA MATZ MATTHEW W.H. WESSLER Gupta Wessler PLLC 1900 L Street, N.W., Suite 312 Washington, DC 20009 (202) 888-1741 deepak@guptawessler.com
JOSEPH M. SELLERS** DANIEL A. SMALL** CHRISTINE E. WEBBER ROBERT A. BRAUN GEORGE F. FARAH ELIZABETH ANISKEVICH Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. Washington, DC 20005 (202) 408-4600 jsellers@cohenmilstein.com
Attorneys for Plaintiffs Citizens for Responsibility and Ethics in Washington (CREW), Restaurant Opportunities Centers (ROC) United, Inc., Jill Phaneuf, and Eric Goode
**Admitted pro hac vice

JA 355

CaCseas1e:1178--c4v7-040, 4D5o8c-uGmBeDnt 2D6o-c2u, m04e/n2t41/200518F, i2le2d870426/156,/P18ageP6a6goef367of 3 CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2018, I electronically ﬁled this notice of appeal through this Court’s CM/ECF system. I understand that notice of this ﬁling will be sent to all parties by operation of the Court’s electronic ﬁling system.
/s/ Deepak Gupta Deepak Gupta
JA 356

Case 18-474, Document 26-2, 04/24/2018, 2287465, Page67 of 67
CERTIFICATE OF SERVICE I hereby certify that on April 24, 2018, I electronically filed the foregoing joint appendix with the Clerk of the Court for the U.S. Court of Appeals for the Second Circuit by using the CM/ECF system. All participants are registered CM/ECF users, and will be served by the appellate CM/ECF system.
/s/ Deepak Gupta Deepak Gupta

 
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18-474-cv Citizens for Responsibility and Ethics in Washington v. Trump

N.Y.S.D. Case # 17-cv-0458(GBD)

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

4

August Term, 2018

5

6

(Argued: October 30, 2018

Decided: September 13, 2019)

7

8

Docket No. 18‐474

9

10 _____________________________________

11

12

Citizens for Responsibility and Ethics in Washington, Restaurant

13

Opportunities Centers United, Inc., Jill Phaneuf, and Eric Goode,

14

15

Plaintiffs‐Appellants,

16

17

v.

18

Sep 13 2019

19

Donald J. Trump, in his official capacity as

20

President of the United States of America,

21

22

Defendant‐Appellee.

23

24 _____________________________________

25
26 Before:

27

28

JOHN M. WALKER, PIERRE N. LEVAL, CHRISTOPHER F. DRONEY,

29

Circuit Judges.

30

31

Plaintiffs, who own and operate businesses in the hospitality industry,

32 appeal from the dismissal of their lawsuit by the United States District Court

33 for the Southern District of New York (George B. Daniels, J.). The district

34 court dismissed Plaintiffs’ suit on the grounds that Plaintiffs lack Article III

35 standing, they fall outside the zone of interests of the Emoluments Clauses,

36 their claims do not present a ripe case or controversy within the meaning of

37 Article III, and the case presents a non‐justiciable “political question.”

38 VACATED AND REMANDED.

39

40

Judge WALKER dissents in a separate opinion.

CERTIFIED COPY ISSUED ON 09/13/2019

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
23 LEVAL, Circuit Judge:

DEEPAK GUPTA, Gupta Wessler PLLC, Washington, D.C. (Jonathan E. Taylor, Joshua Matz, and Daniel Townsend, Gupta Wessler PLLC, Washington, D.C.; Joseph M. Sellers, Daniel A. Small, Cohen Milstein Sellers & Toll PLLC, Washington, D.C.; Norman L. Eisen, Stuart C. McPhail, Adam J. Rappaport, Citizens for Responsibility and Ethics in Washington, Washington, D.C.; Laurence H. Tribe, Harvard Law School, Cambridge, MA, on the brief), for Plaintiffs‐Appellants.
HASHIM M. MOOPPAN, Department of Justice, Washington, D.C., (Chad A. Readler, Michael S. Raab, Megan Barbero, Department of Justice, Washington, D.C., on the brief), for Defendant‐Appellee.

24

Plaintiffs—Eric Goode, a restaurateur and hotelier, and Restaurant

25 Opportunities Center United (“ROC”), a non‐partisan, member‐based

26 organization of restaurants and restaurant workers—appeal from the

27 judgment of the United States District Court for the Southern District of New

28 York (Daniels, J.) dismissing their complaint against Defendant Donald J.

29 Trump, the President of the United States, for lack of subject matter

2

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1 jurisdiction. The complaint seeks declaratory and injunctive relief for the

2 President’s alleged violations of the Domestic and Foreign Emoluments

3 Clauses of the United States Constitution. The President moved to dismiss for

4 lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure

5 12(b)(1), arguing that Plaintiffs did not have standing to sue. The district court

6 granted the motion, concluding that Plaintiffs lack Article III standing, they

7 fall outside the zone of interests of the Emoluments Clauses, their claims do

8 not present a ripe case or controversy within the meaning of Article III, and

9 their suit is barred by the political question doctrine. For the reasons below,

10 we vacate the judgment and remand for further proceedings.

11

A. BACKGROUND

12

Plaintiffs are in the hospitality industry.1 Plaintiff Goode owns high‐

13 end hotels, restaurants, and event spaces in the New York City area. Plaintiff

14 ROC counts among its members over 200 establishments, including high‐end

1 In proceedings before the district court, plaintiffs included Jill Phaneuf, who worked in the hospitality industry, and Citizens for Responsibility and Ethics in Washington (CREW), a non‐profit government watchdog. In Plaintiffs’ appellate briefing, CREW notified the court it is “no longer appealing the district court’s judgment” that CREW lacks standing. Additionally, Phaneuf left the job wherein she allegedly competed with Defendant’s businesses for diplomatic clientele, and Plaintiffs acknowledge that she “no longer has Article III standing to pursue her claims, which sought only prospective relief.”
3

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1 restaurants and event spaces in New York City and Washington, D.C. The

2 Plaintiff establishments cater to foreign and domestic government clientele,

3 and allege that they are direct competitors of hospitality properties owned by

4 the President in Washington D.C. and New York City.

5

The complaint alleges that President Trump, operating through

6 corporations, limited‐liability companies, limited partnerships, and other

7 business structures, is effectively the sole owner of restaurants, hotels, and

8 event spaces, which are patronized by foreign and domestic government

9 clientele. The President has announced that, since assuming office, he has

10 turned over day‐to‐day management of his business empire to his children

11 and established a trust to hold his business assets.2 However, he maintains

12 sole ownership, receives business updates at least quarterly,3 and has the

13 ability to obtain distributions from the trust at any time.4 The facts alleged by

14 Plaintiffs, together with those acknowledged by the President, support the

2 Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017), http://nyti.ms/2jG86w8. 3 Jennifer Calfas, Eric Trump Says He’ll Give the President Quarterly Updates on Business Empire, Fortune (March 24, 2017), http://for.tn/2n2MRXa. 4 Derek Kravitz & Al Shaw, Trump Lawyer Confirms President Can Pull Money From His Businesses Whenever He Wants, ProPublica (April 4, 2017, 5:53 PM), http://bit.ly/2o1OM1C.
4

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1 inference that the revenues of the Trump establishments are substantially (or

2 are convertible into) personal revenues of the President.

3

i. Plaintiffs’ Allegations

4

Stated generally, Plaintiffs allege that they have been and will be

5 injured because foreign and domestic government entities that patronize

6 Washington, D.C. and New York hotels, restaurants, and event spaces

7 patronize Trump establishments (in preference to Plaintiffs’ establishments)

8 in the hope of enriching the President and earning a reward from him

9 through official Presidential action favorable to their governments, and that

10 such enrichment of the President by foreign and domestic government

11 entities violates the Foreign and Domestic Emoluments Clauses. There are

12 three principal categories of allegations.

13

First, Plaintiffs allege that they directly compete with the President’s

14 establishments for foreign, state, and federal government clientele. Second

15 Amended Complaint (the “Complaint”) ¶¶ 13‐20. Plaintiffs support this

16 allegation with extensive declarations from hospitality industry experts.5

5 Where, as here, a defendant makes a “fact‐based” 12(b)(1) motion to dismiss by “proffering evidence beyond the Pleading,” the plaintiff may “need to come forward with evidence of
5

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1 Rachel Roginsky, a hospitality consultant and professor at the Boston 2 University School of Hospitality Administration, asserts that certain of 3 Goode’s hotels and one ROC member’s hotel‐restaurant are “[p]rimary 4 competitors” with Trump SoHo and Trump International New York because 5 they “market to and attract customers from essentially the same pool” given 6 their “similar . . . location, facilities, services, amenities, class, image, and 7 price.” Roginsky Decl. ¶¶ 14‐17. Dr. Christopher Muller, former Dean of the 8 Boston University School of Hospitality Administration, identifies numerous 9 of Plaintiffs’ restaurants in the New York and Washington, D.C. areas that he 10 asserts are “comparable” to various Trump establishments because they are 11 within the same market “segment” and therefore directly compete with one 12 another. Muller Decl. ¶¶ 24‐29, 50‐56, 67‐75. Collectively, the two declarations 13 identify more than a dozen of Plaintiffs’ establishments, which, according to 14 Roginsky and Muller, compete directly with roughly half a dozen Trump
[its] own to controvert that presented by defendant[.]” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (citing Exch. Nat’l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). The President’s motion to dismiss challenged not only the facial sufficiency of the complaint, but also the factual assertion that Plaintiffs’ restaurants directly compete with Trump establishments. Thus, we consider not only the allegations in the complaint but also the expert affidavits submitted in response to Defendant’s fact‐based motion to dismiss.
6

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1 establishments over the same customer base, including foreign and domestic

2 government customers. Owners of these establishments also submitted

3 declarations attesting that their restaurants and hotels are frequented by

4 foreign, state, and federal officials and that they compete directly with Trump

5 establishments over this customer base. Goode Decl. ¶¶ 4, 23‐24, 34, 36, 47‐50;

6 Colicchio Decl. ¶¶ 13‐14, 20‐21, 28‐29. Plaintiffs’ declarations include evidence

7 of loss of government patronage from Plaintiffs’ establishments after the

8 presidential election. ROC alleges that its restaurant and restaurant‐employee

9 members have suffered injury due to “lost business, wages, and tips.”

10 Complaint ¶ 13. Specifically, James Mallios, managing partner at ROC‐

11 member restaurant Amali, testifies that Amali regularly hosts dinners and

12 events for government officials, including foreign leaders, Mallios Decl. ¶¶ 9,

13 20, 24‐27, and that its tax‐exempt sales declined after November 2016,

14 reflecting a decline in government business. Id. ¶ 28.

15

Second, the Complaint cites statements by the President implicitly

16 soliciting the patronage of government officials and apparently

17 acknowledging that, in making governmental decisions, he favors

18 governments that patronize his businesses. See, e.g., Complaint ¶ 96 (“Trump

7

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1 said [of the Saudis, in the context of discussing trade negotiations], ‘. . . They

2 spend $40 million, $50 million. Am I supposed to dislike them? I like them

3 very much.’”); id. ¶ 52 (responding to a question about the U.S.’s dispute with

4 China over the South China Sea, “I do deals with [China] all the time.

5 [China’s largest bank] is a tenant of mine . . .”). The Complaint alleges that

6 Trump businesses began investing in attracting foreign government business

7 after the election, id. ¶¶ 60‐63, and further that these efforts have succeeded in

8 attracting post‐election patronage from foreign governments. Id. ¶¶ 64–87.

9

Third, Plaintiffs allege that foreign governments have taken note of,

10 and been influenced by, the message that enriching the President by giving

11 patronage to his establishments earns his favor. Plaintiffs point to statements

12 by foreign government officials quoted in newspaper articles, including one

13 “Middle Eastern diplomat” who said, “Believe me, all the delegations will go

14 [to Trump establishments].” Id. ¶ 62 (quoting Jonathan O’Connell & Mary

15 Jordan, For foreign diplomats, Trump hotel is place to be, WASH. POST (Nov. 18,

16 2016), http://wapo.st/2oPYggX). Another diplomat reportedly stated, “Why

17 wouldn’t I stay at his hotel blocks from the White House[?] . . . Isn’t it rude to

18 come to his city and say, ‘I am staying at your competitor?’” Id. Plaintiffs also

8

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1 allege that foreign government official patronage of Trump establishments

2 has increased since the President was elected. Id. ¶¶ 56, 60, 64, 68, 72, 79, 82.

3 In particular, Plaintiffs point to one instance in which, shortly after the

4 election, a foreign government switched the venue of an event from a

5 competitor to a Trump establishment. Id. ¶ 74.

6

The Complaint asserts that the President’s receipt of the revenues he

7 derives from the patronage of foreign and domestic government entities

8 violates the Foreign and Domestic Emoluments Clauses. Id. ¶ 1. The Foreign

9 Emoluments Clause provides: “[N]o Person holding any Office of Profit or

10 Trust under [the United States], shall, without the Consent of the Congress,

11 accept of any present, Emolument, Office, or Title, of any kind whatever, from

12 any King, Prince, or foreign State.” U.S. Const., Art. I, § 9, Cl. 8. Congress has

13 not consented to Defendant’s receipt of the emoluments at issue here.

14 Complaint ¶ 2. The Domestic Emoluments Clause provides: “The President

15 shall, at stated Times, receive for his Services, a Compensation, which shall

16 neither be increased nor diminished during the Period for which he shall

17 have been elected, and he shall not receive within that Period any other

9

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1 Emolument from the United States, or any of them.” U.S. Const., Art. II, § 1,

2 Cl. 7.

3

The Complaint seeks both declaratory and injunctive relief. It seeks a

4 declaration, inter alia, that, in these circumstances, the patronage of foreign

5 and domestic government entities of the President’s establishments violates

6 the Foreign and Domestic Emoluments Clauses. Complaint ¶ 20. As to

7 injunctive relief, the Complaint asks the court to “enjoin[] Defendant from

8 violating both Emoluments Clauses” and to “requir[e] Defendant to release

9 financial records sufficient to confirm that Defendant is not engaging in any

10 further transactions that would violate either Emoluments Clause.” Id.

11

ii. Defendant’s Motion to Dismiss

12

The President moved to dismiss the Complaint, arguing that Plaintiffs

13 lacked Article III standing and fell outside the zone of interests of the

14 Emoluments Clauses. As to standing, the President argued that Plaintiffs’

15 “allegations of future injuries are premised upon a speculative chain of

16 possibilities, including the decisions of third parties [i.e., prospective

17 government customers] not before the Court.” Defendant’s Memorandum of

18 Law in Support of the Motion to Dismiss, at 18‐19. With respect to the specific

10

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1 evidence of lost government patronage, the President argued that the

2 declarations do not “show that the decline was attributable to” government

3 customers choosing Trump establishments, because the decline could have a

4 different cause. Reply Memorandum of Law in Support of the Motion to

5 Dismiss, at 6. The President did not contest the substance of Plaintiffs’ expert

6 testimony that certain of Plaintiffs’ establishments compete directly with

7 Trump establishments. As to the zone of interests, President Trump argued

8 that because the Clauses were “intended to guard against the corruption of

9 and foreign influence on federal officials and to ensure the independence of

10 the President,” Plaintiffs’ alleged injuries “bear no relation to the [Clauses’]

11 core concerns,” and thus Plaintiffs’ claims should be dismissed. Defendant’s

12 Memorandum of Law in Support of the Motion to Dismiss, at 25‐26.

13

iii. District Court Decision

14

The district court granted the President’s motion to dismiss for lack of

15 jurisdiction under Rule 12(b)(1). While recognizing that Plaintiffs’ allegations,

16 supported by expert declarations, satisfied the injury prong of the Article III

17 standing inquiry, the district court found “Plaintiffs have failed to properly

18 allege that Defendant’s actions caused Plaintiffs competitive injury and that

11

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1 such an injury is redressable by this Court.” CREW et al. v. Trump, 276 F. Supp.

2 3d 174, 185 (S.D.N.Y. 2017) (emphasis in original). The district court called it

3 “wholly speculative” whether any lost business was “fairly traceable to

4 Defendant’s ‘incentives’ or instead results from government officials’

5 independent desire to patronize Defendant’s businesses.” Id. at 186.

6 Hypothesizing alternative explanations for Plaintiffs’ injury, the district court

7 opined that “interest in [Trump] properties” could have “generally increased

8 since he became President” or Plaintiffs may “face a tougher competitive

9 market overall.” Id. Given that Plaintiffs failed to rule out these alternative

10 explanations for their injury at the pleading stage, the district court concluded

11 the “connection between [] Plaintiffs’ alleged injury and Defendant’s actions

12 is too tenuous to satisfy Article III’s causation requirement.” Id. For the same

13 reasons, the district court found the injury was not likely to be redressed by

14 any relief the district court could offer. Id.

15

The district court also found that Plaintiffs lacked “prudential”

16 standing. Reasoning that standing to sue under the Emoluments Clauses is

17 limited to those parties the Clauses were meant to protect, the district court

18 found that Plaintiffs fell outside the “zone of interests” of the Clauses. Id. at

12

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1 187–88. The district court reasoned that “[n]othing in the text or the history of

2 the Emoluments Clauses suggests that the Framers intended these provisions

3 to protect anyone from competition.” Id. at 187. Rather, the district court

4 found, the Emoluments Clauses are meant to prevent corruption and foreign

5 influence, and ensure the President’s independence. Id. at 188. Contrasting

6 this suit with one brought under the “generous review provisions of the

7 [Administrative Procedure Act],” the district court stated that the zone of

8 interests test “is more strictly applied when a plaintiff is proceeding under a

9 constitutional . . . provision.” Id. at 187 (emphasis in original) (quoting

10 Wyoming v. Oklahoma, 502 U.S. 437, 469 (1992) (Scalia, J., dissenting)).6 Because

11 Plaintiffs are not vindicating an interest in uncorrupted, independent

12 government, the district court reasoned, they do not have standing to sue

13 under the Emoluments Clauses.

14

The district court also found that the suit must be dismissed on two

15 additional grounds, neither of which was raised by the Defendant’s motion.

16 These were that the case presents a non‐justiciable political question and that

6 The district court appeared to mistakenly rely on Justice Scalia’s dissent in Wyoming as if it were a statement by the majority about the proper application of the zone of interests test. See infra n.13.
13

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1 it is not ripe for adjudication. Id. at 193–95. Neither of these grounds is

2 defended by the President on this appeal.

3

B. DISCUSSION

4

A suit brought in federal court is “properly dismissed for lack of

5 subject matter jurisdiction under Rule 12(b)(1) when the district court lacks

6 the statutory or constitutional power to adjudicate it.” Makarova v. United

7 States, 201 F.3d 110, 113 (2d Cir. 2000). To the extent that a district court’s

8 dismissal for lack of subject matter jurisdiction was based on the application

9 of a rule of law,7 an appellate court construes the allegations of the complaint

10 in the light most favorable to Plaintiffs and reviews the district court’s ruling

11 de novo, meaning that our inquiry focuses on whether the rules of law were

12 correctly applied. We conclude that the district court did not apply the law

13 correctly in finding that it lacked jurisdiction to decide the case.

7 In some instances, a district court’s dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is based in part on factual findings. When such a dismissal is appealed, we review the relevant factual findings for clear error. See Rent Stabilization Ass’n of City of New York v. Dinkins, 5 F.3d 591, 594 (2d Cir. 1993). In this case, although the parties presented disputed factual issues to the district court by evidentiary submissions, the court did not purport to resolve disputed issues of fact or make factual findings. Its rulings were based only on the application of rules of law. Accordingly, our review is de novo. Id. (“If the trial court dismissed on the basis of the complaint alone or the complaint supplemented by undisputed facts evidenced in the record, our standard is de novo review[.]”).
14

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1

i. Article III Standing

2

Plaintiffs contend that the district court interpreted the law incorrectly

3 in concluding that they lack standing to bring this action under Article III of

4 the Constitution. There are three prongs to the standing inquiry under Article

5 III. In order to successfully allege standing to bring a suit in federal court, a

6 complaint must plausibly allege the following: first, that the plaintiff has

7 suffered an “injury in fact,” which the Supreme Court defines as “an invasion

8 of a legally protected interest which is (a) concrete and particularized; and (b)

9 actual or imminent, not [merely] conjectural or hypothetical,” Lujan v.

10 Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotation

11 marks omitted); second, that there is a “causal connection between the injury

12 and the conduct complained of,” which requires the injury to be “fairly

13 traceable to the challenged action of the defendant, and not the result of the

14 independent action of some third party not before the court;” id. (internal

15 quotation marks and alterations omitted); and third, that it is “likely, as

16 opposed to merely speculative, that the injury will be redressed by a

17 favorable decision.” Id. (internal quotation marks omitted). These three

18 components of the Article III “case or controversy” requirement are designed

15

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1 to ensure that the “plaintiff has alleged such a personal stake in the outcome

2 of the controversy as to warrant his invocation of federal court jurisdiction

3 and to justify [the] exercise of the court’s remedial powers on his behalf.”

4 Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38 (1974) (internal

5 quotation marks omitted).

6

We find that Plaintiffs satisfy all three prongs of Article III standing for

7 the reasons set forth below.

8

a. Injury

9

The requirement that Plaintiffs adequately allege an injury in fact

10 “serves to distinguish a person with a direct stake in the outcome of a

11 litigation—even though small—from a person with a mere interest in the

12 problem.” United States v. Students Challenging Regulatory Agency Procedures

13 (SCRAP), 412 U.S. 669, 690 n.14 (1973) (citing, inter alia, Kenneth C. Davis,

14 Standing: Taxpayers and Others, 35 U. CHI. L. REV. 601, 613 (1968) (“[A]n

15 identifiable trifle is enough for standing to fight out a question of

16 principle.”)). Because this appeal arises at the pleading stage, “general factual

17 allegations of injury resulting from the defendant’s conduct may suffice, for

18 on a motion to dismiss we presume that general allegations embrace those

16

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1 specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561

2 (internal quotation marks omitted).

3

Plaintiffs’ alleged injury meets the well‐established Article III threshold

4 for economic competitors who allege that, because of unlawful conduct, their

5 rivals enjoy a competitive advantage in the marketplace. To make an

6 adequate allegation of a competitive injury, plaintiffs must plausibly allege (1)

7 that an illegal act bestows upon their competitors “some competitive

8 advantage,” Fulani v. League of Women Voters Edu. Fund, 882 F.2d 621, 626 (2d

9 Cir. 1989); and (2) “that [they] personally compete[] in the same arena” as the

10 unlawfully benefited competitor. In re United States Catholic Conference, 885

11 F.2d 1020, 1029 (2d Cir. 1989). For standing purposes, it is not necessary to

12 identify specific customers who switched to Plaintiffs’ competitors; rather,

13 competitor standing “relies on economic logic to conclude that a plaintiff will

14 likely suffer an injury‐in‐fact when the [defendant] acts in a way that

15 increases competition or aids the plaintiff’s competitors.” Canadian Lumber

16 Trade Alliance v. United States, 517 F.3d 1319, 1332 (Fed. Cir. 2008); see also

17 Cooper v. Tex. Alcoholic Beverage Comm’n, 820 F.3d 730, 738 (5th Cir. 2016) (“It

18 is a basic law of economics that increased competition leads to actual

17

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1 economic injury.’’) (internal quotation marks omitted); Sherley v. Sebelius, 610

2 F.3d 69, 72 (D.C. Cir. 2010) (“[I]ncreased competition almost surely injures a

3 seller in one form or another[.]”); Kerm Inc. v. FCC, 353 F.3d 57, 60 (D.C. Cir.

4 2004) (“A party seeking to establish standing on this basis must demonstrate

5 that it is a direct and current competitor whose bottom line may be adversely

6 affected by the challenged [] action.”) (emphasis added) (internal quotation

7 marks omitted).

8

The Complaint sufficiently alleges that Plaintiffs compete directly with

9 Trump establishments and that the President’s allegedly illegal acts favor

10 Plaintiffs’ competitors. Specifically, it alleges that Plaintiffs’ establishments

11 are harmed in their competition with Trump establishments because, despite

12 being comparable in other relevant respects, the President’s establishments

13 offer government patrons something that Plaintiffs cannot: the opportunity,

14 by enriching the President, to obtain favorable governmental treatment from

15 the President and the Executive branch. It alleges that the marketplace is thus

16 skewed in favor of Trump businesses because of his unlawful receipt of

17 payments from government patrons. The Complaint, supported by expert

18 declarations, alleges that this unlawful market skew has caused Plaintiffs

18

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1 economic harm in the form of lost patronage from government entities, and

2 that such harm will continue in the future. For competitor standing, that is

3 sufficient.

4

The President argues that Plaintiffs rely on a “boundless theory of

5 standing” that the Supreme Court has rejected because it would find the

6 Article III injury prong satisfied “whenever a competitor benefits from

7 something allegedly unlawful . . . .” Already, LLC v. Nike, Inc., 568 U.S. 85, 99

8 (2013). He argues that Plaintiffs’ theory of injury is over‐broad because it

9 would “apply the presumption [of harm to competitors] whenever a party acts

10 illegally and thereby distorts competition or the defendant’s unlawful

11 conduct confers a benefit on a plaintiff’s competitor.” Appellee’s Br. at 31

12 (emphasis in original) (citing Already, 568 U.S. at 99). The Defendant,

13 however, both mischaracterizes Plaintiffs’ argument and misses the mark in

14 analogizing the theory of injury in this case to the one the Supreme Court

15 rejected in Already.

16

Plaintiffs do not argue that they are injured merely because a

17 competitor benefits; rather, Plaintiffs allege that in competing over the exact

18 same customer base, Trump establishments secure an unlawful advantage

19

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1 because giving patronage to Trump establishments offers, in addition to

2 comparable services, the potential, by enriching the President, of securing his

3 favor in governmental decisions. This unlawful market skew directly affects

4 Plaintiffs’ revenue and profits: Every dollar of government patronage drawn

5 to Trump establishments by the hope of currying favor with the President is a

6 lost dollar of revenue that might otherwise have gone to Plaintiffs.

7

These facts have little in common with Already. In Already, the Supreme

8 Court considered whether Already, LLC could challenge the validity of

9 Nike’s “Air Force 1” trademark despite the fact that Nike had issued a

10 covenant that it would refrain from making any claims against Already based

11 on the Air Force 1 trademark, and despite the fact that Already did not plan

12 to sell any product that “would arguably infringe Nike’s trademark yet fall

13 outside the scope of the covenant.” 568 U.S. at 95. The Court clarified that it

14 was insufficient for standing purposes for Already to claim that any gain to

15 Nike was Already’s loss; rather, Already had to show “an injury more

16 particularized and more concrete than the mere assertion that something

17 unlawful benefited [its] competitor.” Id. Because Already did not face any

18 liability for past conduct arguably infringing the Air Force 1 trademark, and

20

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1 because Already had not plausibly alleged any other way in which the

2 trademark’s continued validity injured Already, Already lacked an Article III

3 injury. Here, by contrast, the nature of the injury from the allegedly unlawful

4 conduct is clear and concrete: The Complaint plainly asserts that the Plaintiff

5 establishments are losing, and will continue to lose, business from

6 government patrons based on the patrons’ belief that they can obtain official

7 Presidential favor by spending their money in a manner that enriches the

8 President.

9

We conclude that Plaintiffs have satisfied the Article III requirement of

10 alleging an injury in fact.

11

b. Causation

12

Plaintiffs also adequately allege that their injury is fairly traceable to the

13 challenged conduct of the Defendant. To satisfy the “traceability” or

14 “causation” prong of the Article III standing test, allegations must provide

15 more than “unadorned speculation” to “connect their injury to the challenged

16 actions.” Simon, 426 U.S. at 44–45. This, however, does not require ruling out

17 all possible alternative explanations of a plaintiff’s injury. The allegations of

18 fact must plausibly support a “substantial likelihood” that the plaintiff’s

21

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1 injury was the consequence of the defendant’s allegedly unlawful actions

2 (and that prospective relief could mitigate the harm). Id. at 45.

3

The district court demanded too much at the pleading stage by

4 requiring allegations that dispel alternative possible explanations for

5 Plaintiffs’ injury. The district court identified various alternative theories that

6 could explain a decline in Plaintiffs’ business: a “general[] increase[]” of

7 “interest in [Trump] properties . . . since he became President,” CREW, 276 F.

8 Supp. 3d at 186; the possibility that Trump establishments provide better

9 “service, quality, location, price and other factors related to individual

10 preference,” id.; or “an increase in competition in their respective markets for

11 business from all types of customers[.]” Id. The district court found Plaintiffs’

12 pleadings inadequate because they failed to dispel these alternative

13 explanations. In so doing, the district court effectively required plaintiffs to

14 prove, pre‐discovery, the facts necessary to win at trial. This was error. See

15 Lujan, 504 U.S. at 561 (explaining that less is required to support standing at

16 the pleading stage compared to “successive stages of the litigation,” when the

17 burden increases). Under the standard applied by the district court, it would

18 be virtually impossible to plead a competitive injury, because a defendant

22

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1 would defeat standing merely by pointing to the possibility that customers’

2 preference for defendant’s products or services was attributable to something

3 other than the defendant’s illegal conduct.8

4

Our precedents, and those of the Supreme Court, make clear that

5 Plaintiffs’ allegations are sufficient to plausibly assert a substantial likelihood

6 that their injury is the consequence of the challenged conduct. In Fulani, we

7 upheld the standing of a fringe, third‐party presidential candidate to

8 challenge the continued grant of tax exemption by the IRS to the League of

9 Women Voters on the ground that the League had engaged in impermissible

10 partisan activities by limiting participation in its televised presidential

11 debates to members of the Republican and Democratic parties. 882 F.2d at

8 We also note that there is no logic to the district court’s proposition that, because some government patrons might be drawn to Trump establishments by curiosity, this means that none of them patronize his establishments in the hope of currying the President’s favor by enriching him. In the course of a year, there are thousands of instances in which government representatives patronize hotels and restaurants in New York and Washington. Undoubtedly there are many factors that will influence their selections. The likelihood that some choices of government representatives will be influenced by other factors such as general curiosity in no way undermines Plaintiffs’ altogether plausible allegation of a substantial likelihood that, in some significant number of instances, government officials will choose Trump hotels and restaurants in the hope that spending their dollars at Trump establishments will influence the President in their favor in governmental decisions.
23

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1 625. The League’s criteria for inclusion required, in addition to membership in

2 one of the two major parties, that a candidate be “significant.” Id. at 625–26.

3

Fulani alleged that she was a “significant” candidate, who would have

4 been included if not for the requirement of membership in either the

5 Republican or Democratic party. Id. at 626. In assessing her Article III

6 standing, this court did not probe her allegation that she was a significant

7 candidate despite its dubious merit. We ruled that she had established Article

8 III standing, notwithstanding the obvious improbability that she would make

9 it into the debates as a “significant” candidate. Id. (“For purposes of

10 determining Fulani’s standing to challenge whether the League’s use of [the

11 party membership] requirement was inconsistent with its section 501(c)(3)

12 status, we accept Fulani’s contention that she was a ‘significant’ candidate in

13 this election . . . .”). To satisfy Article III standing, it was sufficient that she

14 had plausibly alleged that she would have qualified. See also Schulz v.

15 Williams, 44 F.3d 48, 53 (2d Cir. 1994) (finding that a would‐be intervenor had

16 Article III standing to prosecute the appeal, where “[t]he district court’s

17 decision could have caused [an] injury [to the intervenor], and [the] appeal

24

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1 could have afforded relief that would have redressed that injury”) (emphasis

2 added).

3

The Supreme Court has repeatedly upheld the standing of a plaintiff‐

4 competitor who alleges a competitive injury caused by a defendant’s

5 unlawful conduct that skewed the market in another competitor’s favor,

6 notwithstanding other possible, or even likely, causes for the benefit going to

7 the plaintiff’s competition. The Supreme Court has explained that when,

8 among competitors, an allegedly illegal “barrier [] makes it more difficult for

9 members of one group to obtain a benefit than it is for members of another

10 group, a member of the former group seeking to challenge the barrier need not

11 allege that he would have obtained the benefit but for the barrier in order to establish

12 standing.” Northeastern Fla. Chapter of Associated Gen. Contractors of Am. v. City

13 of Jacksonville, Fla., 508 U.S. 656, 666 (1993) (emphasis added); see also id.

14 (explaining that an economic competitor meets the standing requirement by

15 plausibly alleging “the inability to compete on an equal footing” without

16 needing to allege the loss of any identifiable piece of business); Regents of

17 Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n.14 (1978) (upholding standing, based

18 on loss of chance to compete equally, of white male applicant to program that

25

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1 reserved 16 of 100 spots for minority applicants); Schulz, 44 F.3d at 53 (finding

2 that “under the well‐established concept of competitors’ standing,” “the loss

3 of opportunity to compete equally” is sufficient to establish standing)

4 (internal citation and quotation marks omitted).

5

Plaintiffs satisfied this standard. The complaint adequately pleads a

6 competitive injury of lost patronage directly traceable to the fact that the

7 President’s allegedly illegal conduct induces government patrons of the

8 hospitality industry in Washington, D.C. and New York City to patronize

9 Trump establishments in preference to Plaintiffs’ establishments.

10

The district court found, and President Trump argues on appeal, that

11 this case is analogous to Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26,

12 38 (1974). See CREW, 276 F. Supp. 3d at 185–86 (“The Court [in Simon] held

13 that [the] alleged injury lacked traceability and redressability because of

14 intervening causal factors . . . . [A]s in Simon, it is wholly speculative whether

15 the Hospitality Plaintiffs’ loss of business is fairly traceable to Defendant’s

16 ‘incentives[.]’”). In Simon, indigent persons and their organizational

17 representatives challenged an IRS revenue ruling that extended favorable tax

18 treatment to non‐profit hospitals that offered only emergency room services

26

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1 to indigents, rather than offering services to indigents to the extent of the

2 hospital’s financial ability, alleging that “by extending tax benefits to such

3 hospitals despite their refusals fully to serve the indigent, the defendants

4 were ‘encouraging’ the hospitals to deny services.” Simon, 426 U.S. at 33. This

5 case is not analogous to Simon.

6

In Simon, the Court questioned whether the modification of the relevant

7 tax rule actually influenced hospital policymaking regarding the scope of

8 services provided to indigent patients, and therefore held that the plaintiffs

9 had failed to establish a causal connection between the challenged IRS Ruling

10 and the denials of service. Central to the Court’s analysis was its skepticism

11 that the previous IRS rule (or its modification) had a material, non‐speculative

12 effect on any given hospital’s decision to offer non‐emergency services to

13 indigents, particularly when the “undetermined financial drain” arising from

14 the costs of supplying such services may have outweighed the benefits of

15 favorable tax treatment. Id. at 43. It was therefore “just as plausible that the

16 hospitals to which respondents may apply for service would elect to forgo

17 favorable tax treatment to avoid” the costs of providing those services. Id. In

18 view of the countervailing cost consideration which potentially offset the

27

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1 effects of the tax rules, and the plaintiff’s failure to “establish . . . that [the]

2 hospitals are [categorically] dependent upon [charitable] contributions,” the

3 Court reasoned that the causal link between the IRS ruling and the hospitals’

4 decisions to deny services to the plaintiffs was little more than “unadorned

5 speculation.” Id. at 43–44. Accordingly, the Court held that the plaintiffs had

6 failed to establish that reinstatement of the previous rule would result in the

7 change in hospital policy that would cure the plaintiffs’ injury. Id. at 45–46.

8

Here, by contrast, the Complaint, supported by expert declarations,

9 alleges that Plaintiffs’ establishments offer services comparable to those

10 offered at Trump establishments in every relevant respect, save one: Plaintiffs

11 cannot offer government patrons the opportunity to obtain favorable

12 treatment from the President and the Executive branch in governmental

13 decisions. It is eminently plausible that if two establishments provide

14 otherwise comparable services, but one establishment offers an inducement

15 that the other cannot offer, then the inducement will attract at least some

16 patronage that might otherwise have gone to the other establishment. The

17 Complaint contains numerous factual allegations sufficient to support the

18 conclusion that the President’s receipt (and invitation) of allegedly illegal

28

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1 emoluments actually influences at least some government customers’

2 purchasing decisions. And unlike in Simon, there is no reason to believe that

3 the competitive skew caused by those patrons’ desire to gain influence by

4 patronizing the Trump establishments is offset or annulled by some

5 countervailing consideration. Simon thus sheds little light on this case.

6

c. Redressability

7

We likewise find that Plaintiffs have adequately pleaded the

8 redressability of their alleged injury, an issue that is closely related to the

9 question of causation. When the injury alleged is caused by the illegal

10 conduct, in many instances (at least where continuation of the illegal conduct

11 will continue to cause harm), the cessation of the illegal conduct will be likely

12 to at least diminish further instance of the injury. Because Plaintiffs have

13 successfully alleged a plausible likelihood that President Trump’s conduct

14 caused their injuries, and the injury is ongoing, it logically follows that relief

15 would redress their injury—at least to some extent, which is all that Article III

16 requires. See Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A plaintiff] need

17 not show that a favorable decision will relieve his every injury.”) (emphasis in

18 original); see also Massachusetts v. E.P.A., 549 U.S. 497, 526 (2007) (finding

29

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1 redressability is satisfied where “risk of catastrophic harm” could be

2 “reduced to some extent if petitioners received the relief they seek”) (emphasis

3 added).

4

The Complaint seeks injunctive relief requiring that the President cease

5 the conduct that allegedly violates the Foreign and Domestic Emoluments

6 Clauses. Plaintiffs have plausibly pleaded that the President’s ownership of

7 hospitality businesses that compete with them will induce government

8 patrons of the hospitality industry to favor Trump businesses over those of

9 the Plaintiffs so as to secure favorable governmental action from the President

10 and Executive branch. This plausibly alleges that his cessation of the violation

11 would eliminate the inducement to those patrons to favor his businesses, and

12 would therefore eliminate, or at least diminish, the competitive injury that

13 Plaintiffs suffer. These plausible allegations are sufficient to satisfy Article

14 III’s requirement of redressability.

15

d. The Fourth Circuit’s In re Trump Decision and Judge Walker’s

16

Dissent

17

We recognize that our colleague Judge Walker disagrees, and that a

18 panel of the Fourth Circuit has also reached the opposite conclusion in a

30

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1 closely analogous case, In re Donald J. Trump, 928 F.3d 360 (4th Cir. 2019).9

2 Judge Walker relies on substantially the same arguments as the Fourth Circuit

3 panel in In re Trump. Respectfully, we do not find these arguments

4 persuasive.

5

As a preliminary note, both opinions seem to be influenced by their

6 perception that these lawsuits are politically motivated. Judge Walker asserts

7 that this case is “deeply political” and emphasizes that “President Trump was

8 democratically elected by the American people . . . with his business holdings

9 and brand prominence in full view.“ See infra. The Fourth Circuit expressed

10 skepticism as to “why [the plaintiffs] came to the court for relief in the first

11 place,” implying that their motivation was political and that this cast doubt

12 on the federal court’s jurisdiction. In re Trump, 928 F.3d at 377; see also infra

13 (quoting In re Trump). While it is certainly possible that these lawsuits are

9 In that case, the District of Columbia and the State of Maryland brought similar claims against the President, alleging violations of the Foreign and Domestic Emoluments Clauses based on factual allegations almost identical to the allegations in this case. Compare In re Trump, 928 F.3d at 365–66 with CREW, 276 F. Supp. 3d at 182–83. The plaintiffs there argued that they had Article III standing based, inter alia, on their “interests in protecting the economic well‐being of their residents, who, as competitors of the President, are injured by decreased business, wages, and tips resulting from economic and commercial activity diverted to the President’s businesses,” as well as based on their “interests as proprietors of businesses that compete with the President’s businesses.” In re Trump, 928 F.3d at 363 (internal quotation marks omitted).
31

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1 fueled in part by political motivations, we do not understand the significance

2 of that fact. It is true that a political motivation for a lawsuit, standing alone,

3 is insufficient to confer Article III standing. Cf. Flast v. Cohen, 392 U.S. 83, 106

4 (1968) (noting that the “federal court[s] [cannot be used] as a forum in which

5 to air [] generalized grievances about the conduct of government”). But while

6 the existence of a political motivation for a lawsuit does not supply standing,

7 nor does it defeat standing. “Standing under Article III . . . [depends on] an

8 injury [that is] concrete, particularized, and actual or imminent; fairly

9 traceable to the challenged action; and redressable by a favorable ruling.”

10 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (citing Horne v.

11 Flores, 557 U.S. 433, 445 (2009)). Whether a lawsuit has political motivations is

12 irrelevant to these determinative issues.

13

1. Injury‐in‐Fact

14

With respect to the “injury‐in‐fact” requirement, Judge Walker

15 correctly states that to establish an injury through the competitor standing

16 doctrine, a plaintiff must show that she is a “direct competitor” of the

17 defendant and an “actual or imminent increase in competition.” See infra

18 (citations omitted). As we conclude above, Plaintiffs have clearly met these

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1 standards. Judge Walker relies on the Supreme Court’s decision in Already,

2 568 U.S. 85, as demonstrating that “competing businesses [do not] have

3 standing to challenge [] unlawful action simply by virtue of their status as a

4 direct competitor.” See infra (citing In re Trump, 928 F.3d at 377).

5

We readily acknowledge that proposition, but we do not agree that it

6 controls here. In their allegations, Plaintiffs go further than simply alleging

7 that they directly compete with the Trump establishments; they plausibly

8 allege precisely how the President’s allegedly unlawful conduct harms their

9 ability to attract patrons to their establishments. See, e.g., Complaint ¶ 14 (“As

10 a competitor of restaurants located in Defendant’s hotels and other properties

11 . . . ROC United has been injured by these payments due to lost business . . . .”)

12 (emphasis added); id. ¶ 199 (“Officials of foreign states and of the United

13 States and various state and local governments have purchased and will use

14 their government’s funds to purchase food and services from one or more

15 restaurants owned by Defendant, instead of from competing restaurants that

16 are members of ROC United.”). And as we point out above, Already involved

17 very different circumstances; the plaintiffs in that case were unable to

33

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1 plausibly allege that Nike’s trademark harmed—or threatened to harm—their

2 business prospects. See 568 U.S. at 99.10

3

Judge Walker also “question[s] the expansive scope” of the competitor

4 standing doctrine, and worries that our approach would confer standing, for

5 example, on a restaurant whose competitor illegally obtained a bank loan or a

6 large tax refund and used its ill‐gotten proceeds to hire a better chef or to

7 lower its prices, thereby exposing the plaintiff–restaurant to increased

8 competition. See infra. Those hypotheticals are far beyond the scope of our

9 ruling. A plaintiff who establishes an injury‐in‐fact by alleging direct

10 competition and an “inability to compete [with the defendant] on an equal

11 footing,” City of Jacksonville, 508 U.S. at 666, must also establish that such

12 injury is “fairly traceable to the defendant’s allegedly unlawful conduct” and

13 “likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737,

14 751 (1984). Here the connection between the alleged violations of law and

10 The Fourth Circuit also criticized the plaintiffs for “rest[ing] on the theory that so long as a plaintiff competes in the same market as a defendant and the defendant enjoys an unlawful advantage, the requirements for Article III standing are met.” In re Trump, 928 F.3d at 377. The Fourth Circuit rejected that “boundless theory of standing” based on the Supreme Court’s holding in Already. See id. For the reasons expressed above, we do not believe that Already precludes Plaintiffs’ theory of standing. See supra.
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1 Plaintiffs’ harm is far more direct than in Judge Walker’s hypothetical: It is

2 precisely the President’s receipt of allegedly illegal emoluments that

3 constitutes Plaintiffs’ competitive injury.

4

Lastly, Judge Walker seems to draw a rule that the competitor standing

5 doctrine is limited to “three broad categories of cases”—agency cases, election

6 cases, and unfair competition cases—and that this case “fits into none of

7 [them].” See infra. He cites no authority for the proposition that the doctrine is

8 limited to these three categories, and we see no reason why it should be. Even

9 if it were, we note that Plaintiffs’ theory of competitive injury in this case is

10 structurally identical to the economic reasoning that often supports standing

11 in the unfair competition context. Id. (noting that, in unfair competition cases,

12 standing exists when the parties are “direct competitors” based on a

13 presumption that “[s]ales gained by one are thus likely to come at the other’s

14 expense”) (quoting TrafficSchool.com, Inc. v. Edriver, Inc., 653 F.3d 820, 825 (9th

15 Cir. 2011)).

16

2. Traceability

17

With respect to traceability, we agree with Judge Walker that “[u]nder

18 the competitor‐standing doctrine, . . . traceability flows readily from a

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1 competitive injury” and that “if the violation would necessarily harm the 2 plaintiff’s competitive opportunities, then an unlawful edge to a competitor 3 logically connects to that violation.” See infra (citations omitted). But we do 4 not understand Judge Walker’s conclusion that traceability is lacking here 5 because there are “simply too many variables at play . . . to allow the 6 plaintiffs to rest solely on the bare assertion that the President’s acceptance of 7 emoluments has caused them competitive injury.” See infra. The fact that there 8 are ”many different factors [that] influence [government officials’] decision 9 making” does not foreclose Plaintiffs’ plausible theory—supported by clear 10 factual allegations—that the President’s prior statements and his receipt of 11 allegedly illegal emoluments unduly influences some government officials to 12 patronize his establishments, thereby causing a competitive harm to Plaintiffs. 13 Id. Judge Walker’s suggestion that the existence of alternate explanations for 14 the Plaintiffs’ competitive injury defeats traceability would deny Article III 15 standing to plaintiffs alleging antitrust, unfair competition, or trademark 16 infringement claims who seek to enjoin conduct that unduly influences 17 buyers in a marketplace. In each of these categories of cases, there exist 18 “myriad reasons” why a consumer might favor a defendant’s product,
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1 including, for example, “service, quality, location, price and other factors

2 related to individual preference.” CREW, 276 F. Supp. 3d. at 186. But these

3 bona fide competitive reasons do not bar a plaintiff from demanding that a

4 court enjoin illegal conduct that skews the marketplace by inserting an

5 additional unlawful competitive advantage.

6

Similarly, the Fourth Circuit panel found that the In re Trump plaintiffs

7 had failed to establish traceability because their “conclusion that government

8 customers are patronizing the [Trump International] Hotel because the Hotel

9 distributes profits or dividends to the President . . . requires speculation into

10 the subjective motives of independent actors who are not before the court.”

11 928 F.3d at 375. Such speculation, the court held, “undermin[es] a finding of

12 causation.” Id.11 We respectfully disagree. That Plaintiffs’ theory of harm

13 results from decisions of third parties does not preclude finding the

14 cognizable link between the challenged action and the alleged harm that

15 Article III requires. Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scalia,

11 The President makes the same argument on appeal in this case. See Appellee’s Br. at 15–17 (“[P]laintiffs cannot establish traceability and redressability where the alleged injury‐in‐fact depends on the decisions of independent third parties whose actions the court can neither predict nor control.”).
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1 J.) (“It is impossible to maintain, of course, that there is no standing to sue 2 regarding action of a defendant which harms the plaintiff only through the 3 reaction of third parties.”); see also Dep’t of Commerce v. New York, 139 S.Ct. 4 2551, 2566 (2019) (holding that plaintiffs had Article III standing where their 5 “theory of standing . . . relies [] on the predictable effect of Government action 6 on the decisions of third parties”) (citing, inter alia, Block, 793 F.2d at 1309)); 7 Bennett v. Spear, 520 U.S. 154, 168–69 (1997) (warning against “wrongly 8 equat[ing] injury ‘fairly traceable’ to the defendant with injury as to which the 9 defendant’s actions are the very last step in the chain of causation”). Virtually 10 every suit for trademark infringement, unfair competition, or violation of the 11 antitrust laws involves harm that results from the decisions of third‐party 12 customers. See TrafficSchool, 653 F.3d at 825 (noting that “[i]n a false 13 advertising suit, a plaintiff establishes Article III injury if ‘some consumers 14 who bought the defendant[’s] product under [a] mistaken belief’ fostered by 15 the defendant ‘would have otherwise bought the plaintiff[’s] product,” and 16 that such an injury may be proven by the “probable market behavior” of 17 independent third parties) (quoting Joint Stock Soc’y v. UDV N. Am., Inc., 266 18 F.3d 164, 177 (3d Cir. 2001); Adams v. Watson, 10 F.3d 915, 923 (1st Cir. 1993)).
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1

When the “injury hinges on the reactions of [] third parties [to the

2 challenged conduct],” the plaintiff “need not prove a cause‐and‐effect

3 relationship with absolute certainty; substantial likelihood of the alleged

4 causality meets the test.” Nat. Res. Def. Council v. Nat’l Highway Traffic Safety

5 Admin., 894 F.3d 95, 104 (2d Cir. 2018). For example, “common sense and

6 basic economics,” along with admissions from the third parties in question

7 that the challenged action would “affect [their] business decisions,” are

8 generally enough to establish the requisite third‐party causation. Id. at 105

9 (internal quotation marks and citations omitted).

10

Accordingly, to establish traceability, Plaintiffs need only establish a

11 substantial likelihood that the President’s receipt of emoluments—and his

12 statements and actions impliedly soliciting such emoluments, see, e.g.,

13 Complaint ¶¶ 52, 96—has some favorable effect on government officials’

14 demand for the Trump establishments (and, by extension, some unfavorable

15 effect on their demand for Plaintiffs’ competing properties). Plaintiffs need

16 not prove that every government official who chooses a Trump establishment

17 does so to curry favor with the President by enriching him, nor need Plaintiffs

18 prove that a particular government official chose or will choose a Trump

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1 establishment for the sole or even the primary reason of earning the

2 President’s favor. Dep’t of Commerce, 139 S.Ct. at 2566 (holding that

3 “traceability is satisfied” when plaintiffs established that the third‐party

4 action leading to the alleged harm was “likely attributable at least in part” to

5 the challenged action, noting that “Article III requires no more than de facto

6 causality”) (emphasis added) (internal quotation marks omitted). Plaintiffs

7 need only plausibly allege that the President’s receipt of emoluments

8 generates an unlawful competitive advantage for the Trump establishments.

9

The allegations in the Complaint are sufficient to meet this burden.

10 Plaintiffs point to statements by foreign diplomats that they and others in

11 their position have been or will be motivated to choose Trump establishments

12 to earn the President’s favor, or to avoid his disfavor. See, e.g., Complaint ¶¶

13 62, 74. Moreover, the President’s statements to the effect that he favors

14 governments that spend money at his establishments increase the likelihood

15 that government patrons will choose Trump establishments in the hopes of

16 winning influence. See, e.g., id. ¶ 96 (alleging that the President publicly stated

17 that he “very much” likes and “get[s] along great with” foreign officials who

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1 do business with him). Without the benefit of discovery, the Plaintiffs need

2 not go further to establish causation for the purposes of Article III.

3

3. Redressability

4

Both Judge Walker’s dissent and the Fourth Circuit’s In re Trump

5 opinion deny that any injunctive relief can be fashioned that would help

6 Plaintiffs’ predicament. See In re Trump, 928 F.3d at 376; infra (“[T]here is no

7 allegation that [the requested relief] would cause diplomatic patrons to book

8 at other establishments.”). The Fourth Circuit expressed the view that “even if

9 government officials were patronizing [the President’s] Hotel to curry [his]

10 favor, there is no reason to conclude that they would cease doing so were the

11 President enjoined from receiving income from the Hotel . . . [given that] the

12 Hotel would still be publicly associated with the President, would still bear

13 his name, and would still financially benefit members of his family.” In re

14 Trump, 928 F.3d at 376. Accordingly, the Fourth Circuit found that “the

15 likelihood that an injunction . . . would not cause government officials to

16 cease patronizing the Hotel demonstrates a lack of redressability.” Id.

17

Again, we disagree. Where customers favor a defendant’s product or

18 service over that of a plaintiff because of that defendant’s violation of law,

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1 which is often the case in trademark infringement, unfair competition, or

2 antitrust cases, the mere possibility that customers might continue to favor

3 the defendant’s product or service after a court enjoins the violation does not

4 defeat Article III standing. If it did, such claims could never be heard before

5 Article III courts.

6

Plaintiffs’ requested remedy need only remove from the equation the

7 improper competitive advantage arising from the possibility that, by

8 patronizing Trump establishments, government officials can earn favor from

9 the President. “[C]ommon sense and basic economics” indicate that the

10 elimination of any illegal competitive advantage that motivated government

11 officials to give more business to the Trump establishments will cause at least

12 some to cease to give preference to those businesses, thereby redressing the

13 claimed injury. Nat. Res. Def. Council, 894 F.3d at 104.

14

Moreover, the Fourth Circuit’s suggestion that, notwithstanding a

15 court’s grant of the requested relief, some government officials would likely

16 continue to patronize Trump establishments to curry the President’s favor is

17 besides the point. In re Trump, 928 F.3d at 376. The Supreme Court made clear

18 in Mass. v. EPA that a remedy that “will not by itself reverse” the alleged

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1 injury would still satisfy the redressability requirement if it “reduced [that

2 injury] to some extent.” 549 U.S. at 525–26 (emphasis omitted); see also Larson,

3 456 U.S. at 243 n.15 (“[A plaintiff] need not show that a favorable decision will

4 relieve his every injury.”).

5

We see no justification for the assertion of Judge Walker and the Fourth

6 Circuit that no injunction can be fashioned that would diminish the plaintiffs’

7 injury. See In re Trump, 928 F.3d 376–77; infra. Injunctive relief could be

8 fashioned along many different lines that would adequately reduce the

9 incentive for government officials to patronize Trump establishments in the

10 hope of currying favor with the President.12

11

4. Relevance of the Purpose of the Emoluments Clauses

12 For example, a court could bar the Trump establishments from selling services to foreign and domestic governments during the President’s tenure in office, which would fully redress Plaintiffs’ injury. A court could require the President to establish a blind trust or otherwise prevent him from receiving information about government patronage of his establishments, which could indicate to government officials that patronizing those establishments is no longer an effective way to earn Presidential favor. A court could require public disclosure of the President’s private business dealings with government officials through the Trump establishments, which may discourage Presidential action that appears to improperly reward such patronage. Cf. Buckley v. Valeo, 424 U.S. 1, 67 (1976) (noting the tendency of disclosure requirements to “avoid the appearance of corruption by exposing [information] to the light of publicity”).
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1

Judge Walker also concludes that the “Emoluments Clauses . . . were

2 never designed to, and nor do they, directly regulate the marketplace or the

3 market player as it functions in the marketplace,” and draws the inference

4 that a plaintiff who seeks to enjoin a violation of the Emoluments Clauses

5 cannot establish standing to sue if that plaintiff’s injury is competitive in

6 nature. See infra. This appears to confuse the question whether the Complaint

7 sufficiently states a cause of action with the question of Article III standing. In

8 Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118, 125–28

9 (2014), Justice Scalia’s majority opinion clarified that the question “whether [a

10 plaintiff] has a cause of action” is separate and distinct from the issue of

11 whether the case “presents a case or controversy that is properly within

12 federal courts’ Article III jurisdiction.” Neither this court, nor the Supreme

13 Court (nor any other) has ruled that a competitive injury‐in‐fact, fairly

14 traceable to the challenged action and likely redressable by the requested

15 relief, fails to confer Article III standing unless the claims are based on a law

16 specifically designed to regulate competition. Consideration of the purposes

17 of the clauses may be relevant to whether the Complaint states an actionable

18 claim, or whether a particular plaintiff is within the law’s “zone of interests,”

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1 see infra, but are not relevant to whether the Plaintiffs have met the three

2 elements that form the “irreducible constitutional minimum of standing.”

3 Lujan, 504 U.S. at 560.

4

We therefore conclude that Plaintiffs have satisfied the Article III

5 requirements of traceability and redressability.

6

ii. Zone of Interests

7

The district court also erred in dismissing the Complaint on the theory

8 that Plaintiffs’ injuries fall outside the “zone of interests” of the Emoluments

9 Clauses. This is for two reasons. First, the zone of interests test does not, as

10 the district court believed, implicate the court’s subject matter jurisdiction.

11 Further, the Supreme Court’s precedents make clear that Plaintiffs’ injuries

12 are not outside the zone of interests of the Emoluments Clauses.

13

Turning first to the question whether zone of interests is a test of Article

14 III standing, the Supreme Court has recently clarified that it is not. In Lexmark

15 Int’l Inc. v. Static Control Components, the Supreme Court, while

16 acknowledging that past decisions had characterized the zone of interests test

17 as part of a “‘prudential’ branch of standing,” reconsidered the question and

18 clarified both that the “prudential” label is a misnomer and that the test does

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1 not implicate Article III standing. 572 U.S. 118, 126–27 (2014). Rather, the

2 Court explained that the test asks whether the plaintiff “has a cause of action

3 under the [law]” on the basis of the facts alleged. Id. at 128. The Court

4 emphasized that the test is not “jurisdictional” because “the absence of a valid

5 . . . cause of action does not implicate subject‐matter jurisdiction.” Id. at 128

6 n.4 (internal quotation marks omitted). In Bank of America v. City of Miami, 137

7 S.Ct. 1296 (2017), the Court reaffirmed that the zone of interests test asks

8 whether the complaint states an actionable claim under a statute (and not

9 whether the plaintiff has standing and the court has subject matter

10 jurisdiction). The City of Miami majority reiterated that the Article III standing

11 requirements are injury, causation, and redressability, and reinforced

12 Lexmark’s essential point that the zone of interests question is “whether the

13 statute grants the plaintiff the cause of action that he asserts.” Id. at 1302.

14

Accordingly, while it had previously been appropriate to consider

15 whether plaintiffs fall within the zone of interests in deciding whether a

16 plaintiff has standing and the court has subject matter jurisdiction, the

17 Supreme Court has unambiguously rejected that approach. The district court

18 thus misconstrued the nature of the zone of interests doctrine.

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1

The district court’s analysis erred on the merits as well. Every Supreme

2 Court decision construing the zone of interests test as it pertains to

3 competitors’ suits supports the view that Plaintiffs satisfy the zone of interests

4 test. Without exception, the Court has held that a plaintiff who sues to enforce

5 a law that limits the activity of a competitor satisfies the zone of interests test

6 even though the limiting law was not motivated by an intention to protect

7 entities such as plaintiffs from competition. See Nat’l Credit Union Admin. v.

8 First Nat. Bank & Tr. Co., 522 U.S. 479, 495–96 (1998) (NCUA) (“[Defendants

9 argue] that there is no evidence that Congress . . . was at all concerned with

10 the competitive interests of commercial banks [such as plaintiffs], or indeed at

11 all concerned with competition . . . . The difficulty with this argument is that

12 similar arguments were made unsuccessfully in [every case construing the

13 zone of interests of a statute vis‐à‐vis a plaintiff competitor].”). After Lexmark,

14 consistent with the longstanding view that the test is “not meant to be

15 especially demanding,” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987), the

16 Court reaffirmed that plaintiffs who allege secondary economic injuries due

17 to conduct that violates a limiting law can satisfy the zone of interests test,

18 notwithstanding that the statute violated was not intended to protect against

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1 the type of injury suffered by the plaintiffs. City of Miami, 137 S.Ct. at 1304–05

2 (finding that a municipality fell within the zone of interests of the Fair

3 Housing Act where it alleges an injury due to discriminatory lending causing

4 an increase in foreclosures, which allegedly cause decreased tax revenues and

5 increased expenditures to remedy blight).

6

The line of cases supporting Plaintiffs’ satisfaction of the zone of

7 interests test stretches back to Ass’n of Data Processing Orgs., Inc. v. Camp, 397

8 U.S. 150 (1970) (Data Processing). In Data Processing, plaintiffs were sellers of

9 data‐processing services. Id. at 151. They sued to set aside a ruling of the

10 Comptroller of the Currency, which allowed national banks to offer data‐

11 processing services to other banks and bank customers. Id. The complaint,

12 alleging a violation of the Administrative Procedure Act, asserted that the

13 Comptroller’s rule inflicted a competitive injury on the plaintiffs by allowing

14 banks to exceed the “legitimate scope of [bank] activities,” as dictated by the

15 National Bank Act and § 4 of the Bank Service Corporation Act. Id. at 157; see

16 also id. at 155 (“No bank service corporation may engage in any activity other

17 than the performance of bank services for banks.”). The Court did not even

18 consider whether the purpose of the statutory restriction was to protect

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1 competitors. Despite noting that the statutes did not “in terms protect a

2 specified group” from competition, the Court found the zone of interests test

3 satisfied because “§ 4 arguably brings a competitor within the zone of

4 interests protected by it.” Id. at 156–57. The Court reasoned that the “general

5 policy [of the statute]” of limiting banks’ activities “is apparent” and

6 permitted the claim to proceed because plaintiffs’ “[financial] interests are

7 directly affected by a broad or narrow interpretation of the Acts.” Id. at 157.

8 The Court concluded that plaintiffs were within the zone of interests because

9 a party alleging a financial injury is a “reliable private attorney general to

10 litigate the issues of the public interest . . . .” Id. at 154; see also Arnold Tours,

11 Inc. v. Camp, 400 U.S. 45, 46 (1971) (clarifying that “Data Processing . . . did not

12 rely on any legislative history showing that Congress desired to protect data

13 processors” and finding plaintiff travel agencies who competed with banks

14 are “arguably . . . within the zone of interests” of a limiting law despite the

15 fact that Congress had not contemplated protecting their competitive

16 interests) (internal quotation marks omitted).

17

The Court’s next major zone of interests case, Investment Company

18 Institute v. Camp, 401 U.S. 617 (1971) (ICI), is especially pertinent because the

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1 purpose of the statute involved there was similar in relevant respects to that 2 of the Emoluments Clauses. The plaintiffs were investment companies that 3 sought to enjoin a regulation promulgated by the Comptroller of the 4 Currency which permitted banks to operate mutual funds. Id. at 618–19. 5 Plaintiffs argued that the ruling violated § 21 of the Glass‐Steagall Act, which 6 made it unlawful “[f]or any person, firm, [or] corporation . . . engaged in the 7 business of issuing . . . securities, to engage at the same time to any extent 8 whatever in the business of receiving deposits.“ 12 U.S.C. § 378(a). Discussing 9 the purpose of Glass‐Steagall, the Court concluded that “Congress [] had in 10 mind . . . [the] hazards that arise when a commercial bank goes beyond the 11 business of acting as fiduciary or managing agent and enters the investment 12 banking business . . . by establishing an affiliate to hold and sell particular 13 investments.” ICI, 401 U.S. at 630 (emphasis added). The Court found that 14 Congress’s purpose in enacting § 21 was to prevent corruption of the banking 15 function and impairment of the ability of banks to function impartially. Id. at 16 630–34; cf. CREW, 276 F. Supp. 3d at 187 (describing the purpose of the 17 Emoluments Clauses as protecting uncorrupted, impartial, and independent 18 governance). Notwithstanding that the intention of § 21 was to protect
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1 systemic integrity and was not even arguably intended to benefit competitors,

2 the Court nonetheless found that the investment company plaintiffs were

3 within its zone of interests. ICI, 401 U.S. at 621 (“There can be no real question

4 . . . of the [plaintiff investment companies’] standing in the light of the Data

5 Processing case.”). The dissent argued that plaintiffs fell outside the zone of

6 interests because “the Glass–Steagall Act [did not] evidence any congressional

7 concern for . . . freedom from competition.” Id. at 640 (Harlan, J., dissenting)

8 (emphasis added). The majority of the Court rejected that argument without

9 discussion. See also Clarke, 479 U.S. at 399–400 (1987) (“[T]here need be no

10 indication of congressional purpose to benefit the would‐be plaintiff.”)

11 (emphasis added).

12

NCUA also recognized competitor injury as within the zone of interests

13 of the law that was allegedly violated, notwithstanding that the law was not

14 intended to protect the plaintiffs in their competitor role. 522 U.S. 479. The

15 plaintiffs were banks that challenged a revision in the interpretation of § 109

16 of the Federal Credit Union Act (“FCUA”) by its administering agency, the

17 National Credit Union Administration (“NCUA”). Id. at 483. Section 109

18 restricted federal credit union membership to “groups” that had a “common

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1 bond of occupation or association.” 12 U.S.C. § 1759(b). The revision that the 2 plaintiffs challenged extended membership eligibility to groups that lacked a 3 single common bond between all members, if the credit union comprised 4 multiple distinct employer sub‐groups within which all members had a 5 common bond. NCUA, 522 U.S. at 484. The plaintiffs contended that the 6 NCUA’s revised interpretation was contrary to the requirements of the Act. 7 Id. at 483. The defendants sought dismissal of the suit on the ground that the 8 competitive injury alleged by the plaintiff banks was outside the zone of 9 interests sought to be protected by Congress in enacting the FCUA. The 10 Supreme Court rejected defendants’ argument, explaining that “[a]s 11 competitors of federal credit unions, [the plaintiff banks] certainly have an 12 interest in limiting the markets that federal credit unions can serve, and the 13 NCUA’s interpretation has affected that interest by allowing federal credit 14 unions to increase their customer base.” Id. at 493–94. In response to 15 defendants’ argument that the plaintiffs’ injuries were outside the FCUA’s 16 zone of interests because “banks were simply not in the picture” when the 17 relevant statute was drafted, the Court dismissed it as “irrelevant.” Id. at 496, 18 499.
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1

As stated above, the Supreme Court recently reaffirmed substantially

2 the same position post‐Lexmark. In City of Miami, the Court found that a

3 plaintiff alleging an economic injury due to allegedly unlawful conduct was

4 within the zone of interests of the law that regulated the conduct in question.

5 137 S.Ct. at 1304–05. The City had brought an action against housing lenders,

6 alleging they had violated the Fair Housing Act (“FHA”) by issuing risky

7 mortgages on unfavorable terms to minority customers. Id. at 1301. The City

8 claimed to have suffered economic injury from lost tax revenue and increased

9 municipal expenses due to higher incidence of mortgage foreclosure and

10 increased demand for services to remedy the resulting urban blight. Id. at

11 1302. The district court had dismissed the suit under Rule 12(b)(6) for failure

12 to state a claim on the ground that “the harms alleged, being economic and

13 not discriminatory, fell outside the zone of interests the FHA protects.” Id.

14 The Supreme Court rejected that position. It ruled that the City’s “financial

15 injuries fall within the zone of interests that the FHA protects.” Id. at 1304.

16 The Supreme Court reasoned that, notwithstanding the absence of any

17 indication that the FHA was intended to protect municipal budgets, it was

18 “highly relevant” that the lenders’ conduct allegedly “diminish[ed] the City’s

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1 property‐tax revenue and increas[ed] demand for municipal services.” Id.

2 Thus, consistent with the longstanding view that a plaintiff’s economic injury

3 usually makes her a “reliable private attorney general to litigate the issues of

4 the public interest,” Data Processing, 397 U.S. at 154, the Supreme Court found

5 the City’s economic injuries to be within the zone of interests of the FHA. See

6 also Bennett, 520 U.S. at 161 (finding that plaintiff ranchers who asserted an

7 economic injury from a new water management plan adopted by the

8 Secretary of the Interior fell within the zone of interests of the Endangered

9 Species Act “notwithstanding that the interests they seek to vindicate are

10 economic rather than environmental”) (emphasis added); Mova Pharm. Corp. v.

11 Shalala, 140 F.3d 1060, 1075 (D.C. Cir. 1998) (“[The zone of interests] analysis

12 focuses . . . on those who in practice can be expected to police the interests that the

13 [law] protects.”) (emphasis added).

14

While most cases addressing whether the plaintiff’s injury is outside

15 the zone of interests of the law alleged to be violated have concerned the zone

16 of interests of a statute, and this suit alleges violations of the Constitution, we

17 can see no reason why the reasoning of the precedents reviewed above are

18 not equally applicable here. The one instance in which the Supreme Court has

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1 ruled on an argument resembling a zone of interests challenge to a

2 Constitutional provision is consistent with the above precedents and suggests

3 that our Plaintiffs satisfy the test. In Wyoming v. Oklahoma, 502 U.S. 437 (1992),

4 Wyoming brought suit against Oklahoma within the original jurisdiction of

5 the Supreme Court, alleging that Oklahoma violated the Dormant Commerce

6 Clause by passing a statute requiring that 10% of the coal used by coal‐fired

7 Oklahoma producers of electric power be mined in Oklahoma. Wyoming did

8 not mine or sell coal. Id. at 442. The only injury Wyoming claimed as a result

9 of the Oklahoma statue was a diminution in its tax revenues because

10 Wyoming coal producers, which paid taxes to Wyoming, suffered diminution

11 in the volume of coal they sold to Oklahoma producers of electric power. Id.

12 at 447–48. Oklahoma sought to have the case dismissed on the ground that

13 the tax loss alleged by Wyoming was too remote from the Dormant

14 Commerce Clause’s purposes as well as too insignificant. See id. at 448, 455.

15 The Court rejected Oklahoma’s arguments and granted summary judgment

16 in favor of Wyoming. Id. at 461.

17

The Supreme Court ruled that Wyoming’s loss of tax revenue caused

18 by Oklahoma’s alleged violation of the Dormant Commerce Clause was a

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1 proper basis for Wyoming’s suit, notwithstanding that its loss of tax revenue 2 was remote from the purposes of the Dormant Commerce Clause. See id. at 3 448–50. The majority did not explicitly discuss the zone of interests test, but in 4 upholding Wyoming’s standing, it rejected the argument in Justice Scalia’s 5 dissent that Wyoming fell outside the zone of interests.13 To the extent it 6 considered whether the alleged injury was too remote from the activity 7 proscribed by the Dormant Commerce Clause, it did so as part of its analysis 8 of the injury and causation requirements of Article III. Id. at 448–49 9 (concluding that the alleged diminution in revenues was “directly linked” to 10 the allegedly unlawful tax); see also Bond v. United States, 564 U.S. 211, 218 11 (2011) (explaining, in holding that an individual prosecuted under federal law 12 has standing to bring a Tenth Amendment claim, that “[i]f . . . the person 13 alleging injury is remote from the zone of interests a [law] protects, whether 14 there is a legal injury at all and whether the particular litigant is one who may
13 Puzzlingly, the district court cited a passage from Justice Scalia’s dissenting opinion in Wyoming seemingly as though it were the holding of the case and without recognizing that the Court’s majority opinion implicitly rejected Justice Scalia’s argument. Justice Scalia wrote in his dissent that the test is “more strictly applied when a plaintiff is proceeding under a constitutional . . . provision instead of the generous review provisions of the APA.” Wyoming, 502 U.S. at 469 (Scalia, J., dissenting) (emphasis in original). The majority did not explicitly discuss this argument, but in upholding Wyoming’s standing, it evidently rejected Justice Scalia’s contention.
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1 assert it can involve similar inquiries”); INS v. Chadha, 462 U.S. 919, 935–36

2 (1983) (holding that individual may challenge a “legislative veto” on

3 separation‐of‐powers grounds).

4

Thus, while the district court may be correct that “[n]othing in the text

5 or history of the Emoluments Clauses suggests that the Framers intended

6 these provisions to protect anyone from competition[,]” CREW, 276 F. Supp.

7 3d at 187, these precedents make clear that the zone of interests test does not

8 require the plaintiff to be an intended beneficiary of the law in question.

9 Plaintiffs who are injured by the defendant’s alleged violation of a limiting

10 law may sue to enforce the limitation under the longstanding zone of interests

11 test the Court has articulated.

12

iii. “Prudential Considerations”—Political Question and Ripeness

13

Plaintiffs also challenge the district court’s dismissal of their Foreign

14 Emoluments Clause claim on two further grounds: (i) that it presents a non‐

15 justiciable political question, and (ii) that the issues it raises are not ripe for

16 adjudication. The district court described these as “prudential reasons” for

17 dismissing the claim. CREW, 276 F. Supp. 3d at 193–95. These grounds were

18 not argued by the President in his motion to dismiss, and the Department of

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1 Justice, acting as counsel to the President, does not defend them in this

2 appeal.14 We do not find the district court’s reasoning persuasive.

3

For both rulings, the district court relied on the fact that the Foreign

4 Emoluments Clause bars the receipt of emoluments “without the Consent of

5 Congress[.]” U.S. Const, art. I, § 9, cl. 8. For its non‐justiciability ruling, the

6 court reasoned that, as Congress is “the only political branch with the power

7 to consent to violations of the Foreign Emoluments Clause, Congress is the

8 appropriate body to determine whether, and to what extent, [the President’s]

9 conduct unlawfully infringes on that power.” CREW, 276 F. Supp. 3d at 193.

10 According to the district court’s reasoning, the courts can never adjudicate

11 whether the Clause has been violated because a suit alleging such a violation

12 will always present a non‐justiciable political question. We respectfully

13 disagree and find Plaintiffs’ arguments in rebuttal more persuasive.

14

The prohibition stated in the constitutional text renders the President’s

15 receipt of “emoluments” unlawful, unless Congress consents to it. In the

14 Notwithstanding that the President neither sought nor defends these aspects of the district court’s ruling, we discuss them because of the obligation of federal courts to consider whether they have subject matter jurisdiction to adjudicate a dispute. Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir. 1994).
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1 undisputed absence of Congressional consent, the President has violated this

2 provision of the Constitution, if, as charged by the Complaint, he has

3 accepted what the Constitution describes as “emoluments.” The federal

4 courts have the responsibility to resolve “Cases and Controversies” arising

5 under the Constitution and laws of the United States. That responsibility

6 entails finding the facts and interpreting the Constitution and laws. It is not

7 affected by the Constitution’s grant of authority to Congress to authorize the

8 President to receive emoluments where Congress has not exercised that

9 authority. The mere possibility that Congress might grant consent does not

10 render the dispute non‐justiciable. The district court’s reasoning treated the

11 Clause’s authorization to Congress as if it said, “Congress alone shall have the

12 authority to determine whether the President acts in violation of this Clause.”

13 It says nothing like that.

14

Furthermore, while challenges to complaints alleging the

15 unconstitutionality of conduct that the Constitution gives Congress the power

16 to authorize are relatively infrequent, they are not unprecedented. When such

17 challenges have arisen, the federal courts, including the Supreme Court, have

18 adjudicated them. See, e.g., C&A Carbone, Inc. v. Town of Clarkstown, N.Y., 511

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1 U.S. 383 (1994) (Dormant Commerce Clause); Cuyler v. Adams, 449 U.S. 433

2 (1981) (Compact Clause).

3

The district court also concluded that the dispute was not ripe for

4 review. It reached that conclusion in reliance on the prospect of future

5 Congressional action and on the reasoning of Justice Powell’s concurrence in

6 the Supreme Court’s order of dismissal in Goldwater v. Carter, 444 U.S. 996

7 (1979).

8

Goldwater was a dispute over the Constitution’s allocation of

9 governmental power between two of the branches of our federal government.

10 President Carter, in the exercise of his constitutional authority to conduct the

11 foreign relations of the United States, and coincident with his recognition of

12 the People’s Republic of China as the “sole government of China,” announced

13 an intention to abrogate a mutual defense treaty made in a previous

14 administration with the Taiwanese government of the “Republic of China.”

15 Goldwater v. Carter, 617 F.2d 697, 700–01 (D.C. Cir. 1979), vacated by 444 U.S.

16 996. The Constitution empowers the President to make treaties and requires

17 Senatorial consent before the treaties become effective; however, it says

18 nothing about whether Senatorial consent is required to abrogate a treaty.

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1 Individual Members of Congress, who disagreed with President Carter’s

2 decision to abrogate the treaty, brought suit for declaratory and injunctive

3 relief, contending that the President lacked authority to abrogate the treaty

4 unilaterally without congressional consent.

5

Four Justices, through Justice Rehnquist’s concurrence accompanying

6 an order granting certiorari, vacating the judgment below, and remanding,

7 voted to dismiss the suit on the ground that it raised a non‐justiciable political

8 question. Goldwater, 444 U.S. at 1002 (Rehnquist, J., concurring). Justice

9 Rehnquist explained his view that the suit was non‐justiciable “because it

10 involves the authority of the President in the conduct of our country’s foreign

11 relations and the extent to which the Senate or the Congress is authorized to

12 negate the action of the President.” Id.

13

The main thrust of Justice Powell’s concurrence was to disagree with

14 Justice Rehnquist’s conclusion that such a dispute over the Constitution’s

15 allocation of governmental power is nonjusticiable. Id. at 996 (Powell, J.,

16 concurring). Justice Powell pointed to the need for a Supreme Court decision

17 to break an otherwise paralyzing governmental stalemate. Id. Nonetheless,

18 Justice Powell agreed with the decision to dismiss the action—not because it

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1 was nonjusticiable, but rather because it was unripe, as the disputing

2 branches had not yet reached the “impasse” that would justify their resorting

3 to the courts to interpret the Constitution and break the stalemate. He

4 emphasized the importance of not “encourag[ing] small groups or even

5 individual Members of Congress to seek judicial resolution of issues before

6 the normal political process has the opportunity to resolve the conflict.” Id.

7

The differences between this case and Goldwater are such that Goldwater

8 does not provide useful guidance for resolving this dispute. The Goldwater

9 litigation arose from a dispute over the allocation of Constitutional powers to

10 two competing branches of government. The Congressional plaintiffs took the

11 position that, by unilaterally abrogating a treaty, which had become effective

12 by virtue of the Senate’s exercise of consent, the President was acting illegally

13 and in so doing, was undermining the Constitutional authority of the Senate.

14 This interbranch clash in claims of governmental authority seemed to Justice

15 Powell to offer a likelihood of ripening into either a political resolution or a

16 need for adjudication to break a governmental impasse. The circumstances of

17 this case are very different. There is no interbranch clash in claims of

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1 Constitutional authority in this case.15 The Presidential conduct that is 2 challenged by this suit is the President’s private conduct. There is no claim on 3 the part of the Congress, or any of its members, that the President’s private 4 conduct of his business affairs usurps power allocated to Congress by the 5 Constitution. While the Constitution empowers Congress to legitimize a 6 President’s otherwise unlawful conduct, the President’s conduct absent 7 Congressional authorization does not usurp or challenge a Congressional 8 prerogative. In fact, it is not members of Congress who are complaining. In 9 this circumstance, in which Congress’s defense of its Constitutional power is 10 not at issue, there is no reason to expect or await either the impasse or the 11 political resolution that Justice Powell saw as the justification for waiting in 12 Goldwater. If the challenged conduct falls within what the Constitution 13 describes as the receipt of “emoluments,” the conduct is prohibited by the 14 Constitution in the absence of congressional consent—and unlike in 15 Goldwater, it is likely simply to continue to occur without a court ruling. This 16 would not be as the result of a “political resolution,” but simply because of
15 Members of Congress have brought a separate action against President Trump, alleging violations of the Foreign Emoluments Clause, which is currently pending. Blumenthal v. Trump, 382 F. Supp. 3d 77 (D.D.C. 2019).
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1 the absence of an adjudicator to tell the President whether his conduct is, or is

2 not, permitted by the Constitution he serves.

3

We therefore think the district court misconstrued Justice Powell’s

4 Goldwater concurrence in believing that it provided “particularly instructive”

5 guidelines for the resolution of this case. CREW, 276 F. Supp. 3d at 194. Justice

6 Powell’s reasoning does not justify deferring adjudication to await a ripening

7 that will not happen.

8

C. CONCLUSION

9

For the foregoing reasons, the judgment of the district court is

10 VACATED and the case is REMANDED for further proceedings consistent

11 with this opinion.

64

 
 United States Court of Appeals
FOR THE
SECOND CIRCUIT _________________

S.D.N.Y. 18-474-cv Daniels, J.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of March, two thousand twenty.

Present:

John M. Walker,
Pierre N. Leval. Circuit Judges.1

Citizens for Responsibility and Ethics in Washington, Restaurant Opportunities Centers United, Inc., Jill Phaneuf, and Eric Goode,
Plaintiffs-Appellants,
v.
Donald J. Trump, in his official capacity as President of the United States of America,
Defendant-Appellee.

18-474

It is hereby ORDERED that the chapter of the panel opinion captioned “Zone of Interests” is amended by deleting the passage from its fourth paragraph (beginning “The district court’s analysis erred on the merits . . .”) to the end of the chapter. The chapter is further amended in the first and second paragraphs so that they are consistent with the above deletion, and at the end of the chapter by addition of a footnote acknowledging and explaining the deletion. The chapter in amended form shall read as follows:
ii. Zone of Interests
The district court also erred in its reliance on the zone of interests test as a basis for finding lack of jurisdiction. The Supreme Court has recently clarified that the zone
1 Judge Christopher F. Droney, who was originally part of the panel assigned to hear this case, retired from the Court effective January 1, 2020. The remaining two members of the panel are in agreement regarding this order. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b).

of interests test is not a test of subject matter jurisdiction. In Lexmark Int’l Inc. v. Static Control Components, the Supreme Court, while acknowledging that past decisions had characterized the zone of interests test as part of a “‘prudential’ branch of standing,” reconsidered the question and clarified both that the “prudential” label is a misnomer and that the test does not implicate Article III standing. 572 U.S. 118, 126–27 (2014). Rather, the Court explained that the test asks whether the plaintiff “has a cause of action under the [law]” on the basis of the facts alleged. Id. at 128. The Court emphasized that the test is not “jurisdictional” because “the absence of a valid . . . cause of action does not implicate subjectmatter jurisdiction.” Id. at 128 n.4 (internal quotation marks omitted). In Bank of America v. City of Miami, 137 S.Ct. 1296 (2017), the Court reaffirmed that the zone of interests test asks whether the complaint states an actionable claim under a statute (and not whether the plaintiff has standing and the court has subject matter jurisdiction). The City of Miami majority reiterated that the Article III standing requirements are injury, causation, and redressability, and reinforced Lexmark’s essential point that the zone of interests question is “whether the statute grants the plaintiff the cause of action that he asserts.” Id. at 1302. Accordingly, while it had previously been appropriate to consider whether plaintiffs fall within the zone of interests in deciding whether a plaintiff has standing and the court has subject matter jurisdiction, the Supreme Court has unambiguously rejected that approach. The district court thus misconstrued the nature of the zone of interests doctrine.FN
Footnote — The original published version of this opinion contained, in this chapter, a discussion of the merits of the zone-of-interests question. That discussion was deleted, by order of March 4, 2020, in order that it not serve as a precedent on the question whether the Complaint states a claim upon which relief may be granted. Because, under Lexmark, the merits of the zone-of-interests question do not bear on the court’s subject matter jurisdiction, that discussion had no pertinence to whether the district court erred in granting the President’s motion under Rule 12(b)(1).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
2