CLOSED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:17−cv−01154−EGS

BLUMENTHAL et al v. TRUMP Assigned to: Judge Emmet G. Sullivan Case in other court: USCA, 19−05237 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 06/14/2017 Date Terminated: 07/08/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

RICHARD BLUMENTHAL

represented by Brian Rene Frazelle CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501 Washington, DC 20036 (202) 296−6889 ext. 308 Email: brian@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brianne Jenna Gorod CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501 Washington, DC 20036 (202) 296−6889 ext. 304 Email: brianne@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bonnie Wydra CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, NW Suite 501 Washington, DC 20036 (202) 296−6889 Email: elizabeth@theusconstitution.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JOHN CONYERS, JR. TERMINATED: 06/26/2019

represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

RICHARD J. DURBIN
Plaintiff PATTY MURRAY
Plaintiff ELIZABETH WARREN
Plaintiff AMY KLOBUCHAR

represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff BERNARD SANDERS
Plaintiff PATRICK LEAHY
Plaintiff SHELDON WHITEHOUSE
Plaintiff AL FRANKEN TERMINATED: 06/26/2019

represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY

Plaintiff CHRISTOPHER A. COONS
Plaintiff MAZIE K. HIRONO
Plaintiff MICHAEL F. BENNET
Plaintiff CORY A. BOOKER

ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra

Plaintiff MARIA CANTWELL
Plaintiff BENJAMIN L. CARDIN
Plaintiff TOM CARPER
Plaintiff CATHERINE CORTEZ MASTO

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff TAMMY DUCKWORTH
Plaintiff KIRSTEN E. GILLIBRAND
Plaintiff KAMALA D. HARRIS
Plaintiff MARTIN HEINRICH

Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address)

Plaintiff TIM KAINE
Plaintiff EDWARD J. MARKEY
Plaintiff JEFF MERKLEY
Plaintiff CHRIS MURPHY

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JACK REED
Plaintiff BRIAN SCHATZ
Plaintiff TOM UDALL
Plaintiff CHRIS VAN HOLLEN

Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY

Plaintiff RON WYDEN
Plaintiff NANCY PELOSI
Plaintiff STENY H. HOYER
Plaintiff JAMES E. CLYBURN

ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Plaintiff JOSEPH CROWLEY TERMINATED: 06/26/2019
Plaintiff LINDA T. SANCHEZ
Plaintiff JERROLD NADLER

Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff ZOE LOFGREN
Plaintiff SHEILA JACKSON LEE
Plaintiff STEVE COHEN
Plaintiff HENRY C. HANK JOHNSON, JR.

represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY

Plaintiff TED DEUTCH
Plaintiff LUIS V. GUTIERREZ TERMINATED: 06/26/2019
Plaintiff KAREN BASS
Plaintiff CEDRIC L. RICHMOND

ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra

Plaintiff HAKEEM JEFFRIES
Plaintiff DAVID N. CICILLINE
Plaintiff ERIC SWALWELL
Plaintiff TED W. LIEU

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMIE RASKIN
Plaintiff ALL PLAINTIFFS
V. Defendant DONALD J. TRUMP in his official capacity as President of the United States of America

Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brian Rene Frazelle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Bonnie Wydra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brianne Jenna Gorod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jean Lin U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Room 11532 Washington, DC 20005 (202) 514−3716 Fax: (202) 616−8470 Email: jean.lin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley P. Humphreys U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20530 (202) 305−0878 Fax: (202) 639−6066 Email: bradley.humphreys@usdoj.gov ATTORNEY TO BE NOTICED
Brett A. Shumate JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 (202) 879−3855 Email: bshumate@jonesday.com TERMINATED: 04/11/2019
James R. Powers

Movant JEFFREY CUTLER
Amicus JUDICIAL EDUCATION PROJECT
Amicus SETH BARRETT TILLMAN Scholar
Amicus MICHAEL BARNES
Amicus LEONARD BOSWELL Amicus BARBARA BOXER

U.S. DEPARTMENT OF JUSTICE Federal Programs Branch, Civil Division 1100 L Street NW Room 11218 Washington, DC 20005 (202) 353−0543 Fax: (202) 616−8470 Email: james.r.powers@usdoj.gov ATTORNEY TO BE NOTICED
represented by JEFFREY CUTLER P.O. Box 2806 York, PA 17405 215−872−5715 PRO SE
represented by Robert William Ray ZEICHNER ELLMAN & KRAUSE LLP 1211 Avenue of the Americas 40th Floor New York, NY 10036 212−223−0400 Email: rray@zeklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert William Ray (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua Michael Blackman JOSH BLACKMAN LLC 1303 San Jacinto Street Houston, TX 77063 202−294−9003 Email: Josh@JoshBlackman.com PRO HAC VICE
represented by Sean Hoe Donahue DONAHUE & GOLDBERG, LLP 1008 Pennsylvania Ave, SE Washington, DC 20003 (202) 277−7085 Fax: (202) 315−3582 Email: sean@donahuegoldberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Amicus BOB CARR
Amicus TOM COLEMAN
Amicus MICKEY EDWARDS
Amicus LEE HAMILTON
Amicus TOM HARKIN
Amicus GARY HART
Amicus BOB INGLIS
Amicus CARL LEVIN
Amicus BRAD MILLER

Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus GEORGE MILLER
Amicus PHILIP SHARP
Amicus CHRIS SHAYS
Amicus PETER SMITH
Amicus MARK UDALL
Amicus HENRY WAXMAN
Amicus DICK ZIMMER
Amicus DON FOX
Amicus FORMER NATIONAL SECURITY OFFICIALS

represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Sean Hoe Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein GOLDSTEIN & RUSSELL P.C. Partner/Owner 7475 Wisconsin Avenue Suite 850 Bethesda, MD 20814 (202) 362−0636 Email: tgoldstein@goldsteinrussell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Phillip Michael Spector MESSING & SPECTOR LLP Office of the President 1200 Steuart Street

Amicus FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS
Amicus REBECCA L. BROWN
Amicus HAROLD H. BRUFF
Amicus NEIL KINKOPF
Amicus CHRISTOPHER H. SCHROEDER
Amicus PETER M. SHANE
Amicus KEVIN M. STACK

Suite 2112 Baltimore, MD 21230 (202) 277−8173 Email: ps@messingspector.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Corey William Roush AKIN GUMP STRAUSS HAUER & FELD LLP Robert S. Strauss Tower 2001 K Street, NW Washington, DC 20006 (202) 887−4000 Email: croush@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katharine M. Mapes SPIEGEL & MCDIARMID LLP 1875 Eye Street, N.W. Suite 700 Washington, DC 20006 (202) 879−4000 Email: katharine.mapes@spiegelmcd.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katharine M. Mapes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katharine M. Mapes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katharine M. Mapes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katharine M. Mapes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Katharine M. Mapes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus PETER L. STRAUSS
Amicus JED H. SHUGERMAN
Amicus MARILYN GLYNN
Amicus KAREN KUCIK
Amicus LAWRENCE R. REYNOLDS
Amicus AMY COMSTOCK RICK
Amicus WALTER SHAUB
Amicus TRIP ROTHSCHILD
Amicus RICHARD M. THOMAS

represented by Katharine M. Mapes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa H. Maxman COHEN & GRESSER, LLP 2001 Pennsylvania Ave, NW Suite 300 Washington, DC 20006 (202) 851−2071 Fax: (202) 851−8820 Email: mmaxman@cohengresser.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus KATHLEEN WHALEN
Amicus HARVEY WILCOX
Amicus LESLIE WILCOX
Amicus JOHN MIKHAIL
Amicus JACK RAKOVE
Amicus GAUTHAM RAO
Amicus SIMON STERN

represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas C. Goldstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa H. Maxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa H. Maxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa H. Maxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Melissa H. Maxman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/14/2017

# Docket Text
1 COMPLAINT against DONALD J. TRUMP ( Filing fee $ 400 receipt number 0090−4989810) filed by NANCY PELOSI, STENY H. HOYER, KAMALA D. HARRIS, BERNARD SANDERS, CHRIS MURPHY, JOHN CONYERS, JR, TOM CARPER, RICHARD BLUMENTHAL, CATHERINE CORTEZ MASTO, CHRIS VAN HOLLEN, BENJAMIN L. CARDIN, KAREN BASS, JACK REED, JEFF MERKLEY, BRIAN SCHATZ, STEVE COHEN, KIRSTEN E. GILLIBRAND, CORY A. BOOKER, TED W. LIEU, EDWARD J. MARKEY, AL FRANKEN, RON WYDEN, JOSEPH CROWLEY, CHRISTOPHER A. COONS, ERIC SWALWELL, TED DEUTCH, MARTIN HEINRICH, HAKEEM JEFFRIES, MICHAEL F. BENNET, TIM KAINE, TOM UDALL, AMY KLOBUCHAR, JAMIE RASKIN, SHEILA JACKSON LEE, LINDA T. SANCHEZ, RICHARD J. DURBIN, SHELDON WHITEHOUSE, MAZIE K. HIRONO, HENRY C. HANK JOHNSON, JR, DAVID N. CICILLINE, MARIA CANTWELL, PATRICK LEAHY, ZOE LOFGREN, PATTY MURRAY, JAMES E. CLYBURN, CEDRIC L. RICHMOND, JERROLD NADLER, TAMMY DUCKWORTH, LUIS V. GUTIERREZ,

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06/14/2017
06/14/2017 07/10/2017

ELIZABETH WARREN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Gorod, Brianne) (Entered: 06/14/2017)
2 NOTICE of Appearance by Elizabeth Bonnie Wydra on behalf of All Plaintiffs (Wydra, Elizabeth) (Entered: 06/14/2017)
3 NOTICE of Appearance by Brian Rene Frazelle on behalf of All Plaintiffs (Frazelle, Brian) (Entered: 06/14/2017)
4 NOTICE of Appearance by Brianne Jenna Gorod on behalf of All Plaintiffs (Gorod, Brianne) (Entered: 06/14/2017)
Case Assigned to Judge Emmet G. Sullivan. (jd) (Entered: 06/14/2017)
5 SUMMONS (1) Issued Electronically as to DONALD J. TRUMP. (Attachment: # 1 Consent Forms)(jd) (Entered: 06/14/2017)
SUMMONS Not Issued as to U.S. Attorney General, and U.S. Attorney for the District of Columbia (jd) (Entered: 06/14/2017)
6 REQUEST FOR SUMMONS TO ISSUE as to U.S. Attorney General filed by NANCY PELOSI, STENY H. HOYER, KAMALA D. HARRIS, BERNARD SANDERS, CHRIS MURPHY, JOHN CONYERS, JR, TOM CARPER, RICHARD BLUMENTHAL, CATHERINE CORTEZ MASTO, CHRIS VAN HOLLEN, BENJAMIN L. CARDIN, KAREN BASS, JACK REED, JEFF MERKLEY, BRIAN SCHATZ, STEVE COHEN, KIRSTEN E. GILLIBRAND, CORY A. BOOKER, TED W. LIEU, EDWARD J. MARKEY, AL FRANKEN, RON WYDEN, JOSEPH CROWLEY, CHRISTOPHER A. COONS, ERIC SWALWELL, TED DEUTCH, MARTIN HEINRICH, HAKEEM JEFFRIES, MICHAEL F. BENNET, TIM KAINE, TOM UDALL, AMY KLOBUCHAR, JAMIE RASKIN, SHEILA JACKSON LEE, LINDA T. SANCHEZ, RICHARD J. DURBIN, SHELDON WHITEHOUSE, MAZIE K. HIRONO, HENRY C. HANK JOHNSON, JR, DAVID N. CICILLINE, MARIA CANTWELL, PATRICK LEAHY, ZOE LOFGREN, PATTY MURRAY, JAMES E. CLYBURN, CEDRIC L. RICHMOND, JERROLD NADLER, TAMMY DUCKWORTH, LUIS V. GUTIERREZ, ELIZABETH WARREN.(Frazelle, Brian) (Entered: 06/14/2017)
7 REQUEST FOR SUMMONS TO ISSUE as to U.S. Attorney for the District of Columbia filed by NANCY PELOSI, STENY H. HOYER, KAMALA D. HARRIS, BERNARD SANDERS, CHRIS MURPHY, JOHN CONYERS, JR, TOM CARPER, RICHARD BLUMENTHAL, CATHERINE CORTEZ MASTO, CHRIS VAN HOLLEN, BENJAMIN L. CARDIN, KAREN BASS, JACK REED, JEFF MERKLEY, BRIAN SCHATZ, STEVE COHEN, KIRSTEN E. GILLIBRAND, CORY A. BOOKER, TED W. LIEU, EDWARD J. MARKEY, AL FRANKEN, RON WYDEN, JOSEPH CROWLEY, CHRISTOPHER A. COONS, ERIC SWALWELL, TED DEUTCH, MARTIN HEINRICH, HAKEEM JEFFRIES, MICHAEL F. BENNET, TIM KAINE, TOM UDALL, AMY KLOBUCHAR, JAMIE RASKIN, SHEILA JACKSON LEE, LINDA T. SANCHEZ, RICHARD J. DURBIN, SHELDON WHITEHOUSE, MAZIE K. HIRONO, HENRY C. HANK JOHNSON, JR, DAVID N. CICILLINE, MARIA CANTWELL, PATRICK LEAHY, ZOE LOFGREN, PATTY MURRAY, JAMES E. CLYBURN, CEDRIC L. RICHMOND, JERROLD NADLER, TAMMY DUCKWORTH, LUIS V. GUTIERREZ, ELIZABETH WARREN.(Frazelle, Brian) (Entered: 06/14/2017)
8 SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Forms)(jd) (Entered: 06/14/2017)
9 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. DONALD J. TRUMP served on 6/19/2017, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 06/19/2017., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 6/19/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 8/18/2017.) (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Frazelle, Brian) (Entered: 07/10/2017)

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10 NOTICE of Appearance by Jean Lin on behalf of DONALD J. TRUMP (Lin, Jean) (Entered: 07/12/2017)
11 Joint MOTION for Extension of Time to Respond to the Complaint and for Entry of Scheduling Order by DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Lin, Jean). Added MOTION for Scheduling Order on 7/13/2017 (znmw). (Entered: 07/12/2017)
12 STANDING ORDER: The parties are directed to read the attached Standing Order Governing Civil Cases Before Judge Emmet G. Sullivan in its entirety upon receipt. The parties are hereby ORDERED to comply with the directives in the attached Standing Order. Signed by Judge Emmet G. Sullivan on 7/14/2017.(Attachments: # 1 Appendix) (lcegs1) (Entered: 07/14/2017)
MINUTE ORDER granting 11 Joint Motion for Extensions of Time and for Entry of Scheduling Order. The following schedule shall govern proceedings in this case: plaintiffs' first amended complaint shall be filed by no later than August 15, 2017; defendant's response to the complaint shall be filed by no later than September 15, 2017; any motion seeking leave to file an amicus curiae brief in support of defendant, with the brief attached as an exhibit, shall be filed by no later than September 22, 2017; plaintiffs' opposition to the motion to dismiss shall be filed by no later than October 26, 2017; any motion seeking leave to file an amicus curiae brief in support of plaintiffs, with the brief attached as an exhibit, shall be filed by no later than November 2, 2017; defendant's reply in support of the motion to dismiss shall be filed by no later than November 21, 2017. It is FURTHER ORDERED that the parties may file non−hyperlinked briefs in accordance with this schedule. By no later than November 28, 2017, the parties, including those seeking leave to file an amicus curiae brief, shall file E−Briefs containing hyperlinks to any cited exhibits and points and authorities. By no later than November 28, 2017, the parties, including those seeking leave to file an amicus curiae brief, shall submit to the Court two hard copies and one USB drive containing all submissions to the Court governed by this scheduling order, including points and authorities. All paper copy submissions to the Court shall include the headers added by the Case Management/Electronic Case Files (CM/ECF) System and shall be single−sided, double−spaced, use 12−point Times New Roman font, and use one inch page margins. Each set of hard copies shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the pleading therein. It is FURTHER ORDERED that by no later than November 28, 2017, the parties shall jointly submit one copy of each principal case or authority cited by any party. The points and authorities shall be in three−ring binders, with appropriate tables of contents and tabs, and the binders shall be clearly labeled to identify the contents therein. Plaintiffs' counsel is HEREBY REMINDED of Local Civil Rule 5.1(c)(1) requiring documents signed by an attorney to include the D.C. Bar identification number of the attorney, as appropriate. Signed by Judge Emmet G. Sullivan on 7/14/2017. (lcegs1) (Entered: 07/14/2017)
13 ORDER GOVERNING THE FILING OF AMICUS CURIAE BRIEFS. Signed by Judge Emmet G. Sullivan on 7/14/2017. (lcegs1) (Entered: 07/14/2017)
Set/Reset Deadlines: Plaintiffs' First Amended Complaint due by 8/15/2017. Defendant's Response To The Complaint due by 09/15/2017. Motion Seeking Leave To File An Amicus Curiae Brief In Support Of Defendant, With The Brief Attached As An Exhibit due by 9/22/2017. Plaintiffs' Opposition To The Motion To Dismiss due by 10/26/2017. Motion Seeking Leave To File An Amicus Curiae Brief In Support Of Plaintiffs, With The Brief Attached As An Exhibit due by 11/02/2017. Defendant's Reply In Support Of The Motion To Dismiss due by 11/21/2017. Parties, Including Those Seeking Leave To File An Amicus Curiae Brief, Shall File E−Briefs, Containing Hyperlinks To Any cited Exhibits and Points And Authorities due by 11/28/2017. (mac) (Entered: 07/16/2017)
14 AMENDED COMPLAINT against DONALD J. TRUMP filed by NANCY PELOSI, STENY H. HOYER, KAMALA D. HARRIS, BERNARD SANDERS, CHRIS MURPHY, JOHN CONYERS, JR, TOM CARPER, RICHARD BLUMENTHAL, CATHERINE CORTEZ MASTO, CHRIS VAN HOLLEN, BENJAMIN L. CARDIN, KAREN BASS, JACK REED, JEFF MERKLEY, BRIAN SCHATZ, STEVE COHEN, KIRSTEN E. GILLIBRAND, CORY A. BOOKER, TED W. LIEU, EDWARD J. MARKEY, AL FRANKEN, RON WYDEN, JOSEPH CROWLEY,

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CHRISTOPHER A. COONS, ERIC SWALWELL, TED DEUTCH, MARTIN HEINRICH, HAKEEM JEFFRIES, MICHAEL F. BENNET, TIM KAINE, TOM UDALL, AMY KLOBUCHAR, JAMIE RASKIN, SHEILA JACKSON LEE, LINDA T. SANCHEZ, RICHARD J. DURBIN, SHELDON WHITEHOUSE, MAZIE K. HIRONO, HENRY C. HANK JOHNSON, JR, DAVID N. CICILLINE, MARIA CANTWELL, PATRICK LEAHY, ZOE LOFGREN, PATTY MURRAY, JAMES E. CLYBURN, CEDRIC L. RICHMOND, JERROLD NADLER, TAMMY DUCKWORTH, LUIS V. GUTIERREZ, ELIZABETH WARREN. (Attachments: # 1 Exhibit Redline −− Amended Complaint)(Gorod, Brianne) (Entered: 08/15/2017)
15 MOTION to Dismiss for Failure to State a Claim by DONALD J. TRUMP (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Lin, Jean) Modified event title on 9/18/2017 (znmw). (Entered: 09/15/2017)
16 MOTION for Leave to File Brief of Scholar Seth Barrett Tillman and Judical Education Project as Amici Curiae in Support of the Defendant by SETH BARETT TILLAN, JUDICIAL EDUCATION PROJECT (Attachments: # 1 Exhibit A − Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, # 2 Text of Proposed Order)(Ray, Robert) Modified to correct filers on 9/20/2017 (znmw). (Entered: 09/19/2017)
17 RESPONSE re 15 MOTION to Dismiss for Failure to State a Claim filed by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, JOHN CONYERS, JR, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, AL FRANKEN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN. (Gorod, Brianne) (Entered: 10/26/2017)
18 MOTION for Leave to File Brief Amici Curiae by MICHAEL BARNES, LEONARD BOSWELL, BARBARA BOXER, Bob Carr, TOM COLEMAN, Mickey Edwards, Lee Hamilton, Tom Harkin, GARY HART, Bob Inglis, CARL LEVIN, Brad Miller, GEORGE MILLER, PHILIP SHARP, CHRIS SHAYS, PETER SMITH, MARK UDALL, HENRY WAXMAN, DICK ZIMMER (Attachments: # 1 Text of Proposed Order)(Donahue, Sean) (Entered: 11/02/2017)
19 NOTICE of Appearance by Sean Hoe Donahue on behalf of MICHAEL BARNES, et al. (Donahue, Sean) (Entered: 11/02/2017)
20 NOTICE of Appearance by Thomas C. Goldstein on behalf of DON FOX, et al. (Goldstein, Thomas) (Entered: 11/02/2017)
21 MOTION for Leave to File Amici Curiae Brief by DON FOX, et al. (Attachments: # 1 Exhibit Amici Curiae Brief of Former Government Ethics Officers, # 2 Text of Proposed Order)(Goldstein, Thomas) (Entered: 11/02/2017)
22 MOTION for Leave to File Amicus Curiae Brief by FORMER NATIONAL SECURITY OFFICIALS (Attachments: # 1 Exhibit Amicus Curiae Brief, # 2 Text of Proposed Order)(Spector, Phillip) (Entered: 11/02/2017)
23 NOTICE of Appearance by Corey William Roush on behalf of FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS (Roush, Corey) (Entered: 11/02/2017)
24 MOTION for Leave to File Amici Brief In Support of Plaintiffs by FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Roush, Corey) (Entered: 11/02/2017)

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25 MOTION for Leave to File Brief of Separation of Powers Scholars as Amici Curiae in Support of Plaintiffs by REBECCA L. BROWN, HAROLD H BRUFF, NEIL KINKOPF, CHRISTOPHER H. SCHROEDER, PETER M. SHANE, KEVIN M. STACK, PETER L. STRAUSS (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Text of Proposed Order)(Mapes, Katharine) (Entered: 11/02/2017)
26 MOTION for Leave to File Brief of Amici Curiae by JED H. SHUGERMAN, JOHN MIKHAIL, JACK RAKOVE, GAUTHUM RAO, SIMON STERN (Attachments: # 1 Exhibit Amici Curiae Brief, # 2 Text of Proposed Order, # 3 Certificate of Service)(Maxman, Melissa) (Entered: 11/02/2017)
27 MOTION for Leave to Appear Pro Hac Vice :Attorney Name− Joshua M. Blackman, :Firm− Joshua M. Blackman, :Address− 1303 San Jacinto Street, Houston, Texas 77002. Phone No. − 202−294−9003. Filing fee $ 100, receipt number 0090−5190329. Fee Status: Fee Paid. by SETH BARRETT TILLMAN (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Ray, Robert) (Entered: 11/03/2017)
28 REPLY to opposition to motion re 15 MOTION to Dismiss for Failure to State a Claim and for Lack of Jurisdiction filed by DONALD J. TRUMP. (Lin, Jean) (Entered: 11/21/2017)
29 MOTION for Leave to File Amicus Curiae E−Brief with Hyperlinks by FORMER NATIONAL SECURITY OFFICIALS (Attachments: # 1 Exhibit Amicus Curiae E−Brief With Hyperlinks, # 2 Text of Proposed Order)(Spector, Phillip) (Entered: 11/26/2017)
30 NOTICE OF FILING HYPERLINKED E−BRIEF by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, JOHN CONYERS, JR, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, AL FRANKEN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Gorod, Brianne) (Entered: 11/28/2017)
31 MOTION for Leave to File Amicus Curiae Hyperlinked E−Brief by DON FOX, MARILYN GLYNN, KAREN KUCIK, LAWRENCE R. REYNOLDS, AMY COMSTOCK RICK, TRIP ROTHSCHILD, WALTER SHAUB, RICHARD M. THOMAS, KATHLEEN WHALEN, HARVEY WILCOX, LESLIE WILCOX (Attachments: # 1 Exhibit Amicus Curiae Hyperlinked E−Brief, # 2 Text of Proposed Order)(Goldstein, Thomas) (Entered: 11/28/2017)
32 NOTICE OF FILING HYPERLINKED BRIEF OF AMICI CURIAE by JOHN MIKHAIL, JACK RAKOVE, GAUTHAM RAO, JED H. SHUGERMAN, SIMON STERN re 26 MOTION for Leave to File Brief of Amici Curiae (Maxman, Melissa) (Main Document 32 replaced on 11/29/2017) (znmw). (Entered: 11/28/2017)
33 NOTICE by REBECCA L. BROWN, HAROLD H. BRUFF, NEIL KINKOPF, CHRISTOPHER H. SCHROEDER, PETER M. SHANE, KEVIN M. STACK, PETER L. STRAUSS (Mapes, Katharine) (Entered: 11/28/2017)
34 NOTICE of Filing Hyperlinked E−Brief by FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS re 24 MOTION for Leave to File Amici Brief In Support of Plaintiffs (Roush, Corey) (Entered: 11/28/2017)
35 NOTICE of Filing by DONALD J. TRUMP (Lin, Jean) (Entered: 11/28/2017)
36 NOTICE of Filing Hyperlinked E−Brief by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN (Ray, Robert) (Additional attachment(s) added on 11/29/2017: # 1 Hyperlinked Brief, # 2 Request Notice) (znmw). (Entered:

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03/06/2018 03/06/2018 03/06/2018

11/28/2017)
37 NOTICE by MICHAEL BARNES (Donahue, Sean) (Entered: 11/28/2017)
38 NOTICE OF SUPPLEMENTAL AUTHORITY by DONALD J. TRUMP (Attachments: # 1 Exhibit A)(Lin, Jean) (Entered: 12/22/2017)
MINUTE ORDER granting 16 MOTION for Leave to File Brief of Scholar Seth Barrett Tillman and Judical Education Project as Amici Curiae in Support of the Defendant. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 18 MOTION for Leave to File Brief Amici Curiae by MICHAEL BARNES, LEONARD BOSWELL, BARBARA BOXER, Bob Carr, TOM COLEMAN, Mickey Edwards, Lee Hamilton, Tom Harkin, GARY HART, Bob Inglis, CARL LEVIN, Brad Miller, GEORGE MILLER, PHILIP SHARP, CHRIS SHAYS, PETER SMITH, MARK UDALL, HENRY WAXMAN, DICK ZIMMER. Signed by Judge Emmet G. Sullivan on 3//2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 21 MOTION for Leave to File Amici Curiae Brief by DON FOX, et al. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 22 MOTION for Leave to File Amicus Curiae Brief by FORMER NATIONAL SECURITY OFFICIALS. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 24 MOTION for Leave to File Amici Brief In Support of Plaintiffs by FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 25 MOTION for Leave to File Brief of Separation of Powers Scholars as Amici Curiae in Support of Plaintiffs by REBECCA L. BROWN, HAROLD H BRUFF, NEIL KINKOPF, CHRISTOPHER H. SCHROEDER, PETER M. SHANE, KEVIN M. STACK, PETER L. STRAUSS. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
39 MINUTE ORDER granting 26 MOTION for Leave to File Brief of Amici Curiae by JED H. SHUGERMAN, JOHN MIKHAIL, JACK RAKOVE, GAUTHUM RAO, SIMON STERN.Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 27 MOTION for Leave to Appear Pro Hac Vice. Joshua M. Blackman, Esq. is admitted pro hac vice in this proceeding. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 29 MOTION for Leave to File Amicus Curiae E−Brief with Hyperlinks by FORMER NATIONAL SECURITY OFFICIALS. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER granting 31 MOTION for Leave to File Amicus Curiae Hyperlinked E−Brief by DON FOX, MARILYN GLYNN, KAREN KUCIK, LAWRENCE R. REYNOLDS, AMY COMSTOCK RICK, TRIP ROTHSCHILD, WALTER SHAUB, RICHARD M. THOMAS, KATHLEEN WHALEN, HARVEY WILCOX, LESLIE WILCOX. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
MINUTE ORDER. The Court sua sponte schedules a motion hearing to hear oral argument on 15 motion to dismiss in this proceeding. The motion hearing shall take place on June 7, 2018 at 10:00 am in Courtroom 20. Signed by Judge Emmet G. Sullivan on 3/6/2018. (lcegs1) (Entered: 03/06/2018)
Set/Reset Hearings: Motion Hearing set for 6/7/2018 at 10:00 AM in Ceremonial Courtroom before Judge Emmet G. Sullivan. (mac) (Entered: 03/06/2018)
40 AMICUS BRIEF by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN. (jf) (Entered: 03/08/2018)

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04/13/2018 04/13/2018 04/17/2018 04/30/2018

41 AMICUS BRIEF by MICHAEL BARNES, LEONARD BOSWELL, BARBARA BOXER, BOB CARR, TOM COLEMAN, MICKEY EDWARDS, LEE HAMILTON, TOM HARKIN, GARY HART, BOB INGLIS, CARL LEVIN, BRAD MILLER, GEORGE MILLER, PHILIP SHARP, CHRIS SHAYS, PETER SMITH, MARK UDALL, HENRY WAXMAN, DICK ZIMMER. (jf) (Entered: 03/08/2018)
42 AMICUS BRIEF by DON FOX, MARILYN GLYNN, KAREN KUCIK, LAWRENCE R. REYNOLDS, AMY COMSTOCK RICK, TRIP ROTHSCHILD, WALTER SHAUB, RICHARD M. THOMAS, KATHLEEN WHALEN, HARVEY WILCOX, LESLIE WILCOX . (jf) (Entered: 03/08/2018)
43 AMICUS BRIEF by FORMER NATIONAL SECURITY OFFICIALS. (jf) (Entered: 03/08/2018)
44 AMICUS BRIEF by FEDERAL JURISDICTION AND CONSTITUTIONAL LAW SCHOLARS. (jf) (Entered: 03/08/2018)
45 AMICUS BRIEF by (Separation of Powers Scholars) REBECCA L. BROWN, HAROLD H. BRUFF, NEIL KINKOPF, CHRISTOPHER H. SCHROEDER, PETER M. SHANE, KEVIN M. STACK, PETER L. STRAUSS. (jf) (Entered: 03/08/2018)
46 AMICUS BRIEF by JOHN MIKHAIL, JACK RAKOVE, GAUTHAM RAO, JED H. SHUGERMAN, SIMON STERN. (jf) (Entered: 03/08/2018)
84 AMICUS BRIEF by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN. (jf) (Entered: 07/02/2019)
MINUTE ORDER. The parties are directed to respond, by no later than April 30, 2018, to any arguments raised by amici that have not been addressed by the parties in their briefs. The response shall be a consolidated response to all amicus curiae briefs of no more than 45 pages. Signed by Judge Emmet G. Sullivan on 3/30/2018. (lcegs1) (Entered: 03/30/2018)
Set/Reset Deadlines: Response To All Amicus Curiae Briefs due by 4/30/2018 (mac) (Entered: 03/30/2018)
47 NOTICE OF SUPPLEMENTAL AUTHORITY by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Attachments: # 1 Exhibit A)(Gorod, Brianne) (Entered: 04/05/2018)
48 MOTION to Clarify by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Ray, Robert) (Entered: 04/13/2018)
49 CERTIFICATE OF SERVICE by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN re 48 MOTION to Clarify . (Ray, Robert) (Entered: 04/13/2018)
MINUTE ORDER. In view of 48 motion to clarify, the Court clarifies that amici are not invited to respond to arguments raised by other amici. Signed by Judge Emmet G. Sullivan on 4/17/2018. (lcegs1) Modified event title on 4/19/2018 (znmw). (Entered: 04/17/2018)
50 SUPPLEMENTAL MEMORANDUM to re Order, filed by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE,

04/30/2018 05/21/2018 05/22/2018 05/22/2018 06/04/2018 06/07/2018 07/27/2018
07/27/2018

JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN. (Gorod, Brianne) (Entered: 04/30/2018)
51 SUPPLEMENTAL MEMORANDUM to re 15 MOTION to Dismiss for Failure to State a Claim and for Lack of Subject Matter Jurisidction (Pursuant to the Court's March 30 Order) filed by DONALD J. TRUMP. (Lin, Jean) (Entered: 04/30/2018)
52 MOTION For Leave to be Heard at Oral Argument by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Ray, Robert) (Entered: 05/21/2018)
MINUTE ORDER. The Court has determined that at the June 7, 2018 motion hearing in this case, it will hear argument only on the threshold question of plaintiffs' standing to bring their claims. The Court is appreciative of the amicus briefs submitted, but declines to invite any amicus to be heard orally. Signed by Judge Emmet G. Sullivan on 5/22/2018. (lcegs1) (Entered: 05/22/2018)
MINUTE ORDER denying 52 motion for leave to be heard at oral argument by amicus. Signed by Judge Emmet G. Sullivan on 5/22/2018. (lcegs1) (Entered: 05/22/2018)
53 NOTICE of Appearance by Brett A. Shumate on behalf of DONALD J. TRUMP (Shumate, Brett) (Entered: 06/04/2018)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motion Hearing held on 6/7/2018 re 15 MOTION to Dismiss for Failure to State a Claim. (Court Reporter SCOTT WALLACE.) (mac) (Entered: 06/07/2018)
54 TRANSCRIPT OF PROCEEDINGS before Judge Emmet G. Sullivan held on 6−7−18; Page Numbers: 1−119. Date of Issuance:6−14−18. Court Reporter/Transcriber Scott Wallace, Telephone number 202−354−3196, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.<P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 8/17/2018. Redacted Transcript Deadline set for 8/27/2018. Release of Transcript Restriction set for 10/25/2018.(Wallace, Scott) (Main Document 54 replaced on 7/31/2018) (zjf). (Entered: 07/27/2018)
55 NOTICE OF SUPPLEMENTAL AUTHORITY by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS

08/15/2018 08/20/2018
08/20/2018 09/28/2018 09/28/2018 10/22/2018 11/02/2018
11/09/2018 01/30/2019

MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Attachments: # 1 Exhibit A)(Gorod, Brianne) (Entered: 07/27/2018)
56 NOTICE OF SUPPLEMENTAL AUTHORITY by DONALD J. TRUMP (Attachments: # 1 Exhibit)(Lin, Jean) (Entered: 08/15/2018)
57 NOTICE OF SUPPLEMENTAL AUTHORITY by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Frazelle, Brian) (Entered: 08/20/2018)
NOTICE OF ERROR re 57 NOTICE OF SUPPLEMENTAL AUTHORITY; emailed to brian@theusconstitution.org, cc'd 20 associated attorneys −− The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. DO NOT REFILE−Signature on pleadings should match Login/Password (zjf, ) (Entered: 08/20/2018)
58 ORDER denying in part and deferring in part 15 Motion to Dismiss. Signed by Judge Emmet G. Sullivan on 9/28/2018. (lcegs1) (Entered: 09/28/2018)
59 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 9/28/2018. (lcegs1) (Entered: 09/28/2018)
60 MOTION for Certification for interlocatory appeal of the Court's September 28, 2018 Order by DONALD J. TRUMP (Attachments: # 1 Memorandum in Support)(Lin, Jean) (Entered: 10/22/2018)
61 Memorandum in opposition to re 60 MOTION for Certification for interlocatory appeal of the Court's September 28, 2018 Order filed by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, JOSEPH CROWLEY, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, LUIS V. GUTIERREZ, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN. (Attachments: # 1 Exhibit)(Gorod, Brianne) (Entered: 11/02/2018)
62 REPLY to opposition to motion re 60 MOTION for Certification for interlocatory appeal of the Court's September 28, 2018 Order filed by DONALD J. TRUMP. (Lin, Jean) (Entered: 11/09/2018)
63 NOTICE OF SUPPLEMENTAL AUTHORITY by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN,

02/01/2019 04/11/2019 04/30/2019 04/30/2019 04/30/2019
05/01/2019 05/03/2019 05/03/2019 05/07/2019 05/07/2019
05/08/2019 05/08/2019 05/14/2019
05/15/2019 05/21/2019

KIRSTEN E. GILLIBRAND, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Attachments: # 1 Exhibit A)(Gorod, Brianne) (Entered: 01/30/2019)
64 NOTICE OF SUPPLEMENTAL AUTHORITY by DONALD J. TRUMP (Attachments: # 1 Exhibit A)(Lin, Jean) (Entered: 02/01/2019)
65 NOTICE OF WITHDRAWAL OF APPEARANCE as to DONALD J. TRUMP. Attorney Brett A. Shumate terminated. (Shumate, Brett) (Entered: 04/11/2019)
66 ORDER denying in part 15 Motion to Dismiss. Signed by Judge Emmet G. Sullivan on 4/30/2019. (lcegs1) (Entered: 04/30/2019)
67 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 4/30/2019. (lcegs1) (Entered: 04/30/2019)
MINUTE ORDER. In view of 66 Order and 67 Memorandum Opinion, the Court HEREBY ORDERS supplemental briefing on 60 Motion for Certification for Interlocutory Appeal. The President shall file a supplemental brief by no later than May 14, 2019, plaintiffs shall file an opposition by no later than May 21, 2019, and the President shall file a reply by no later than May 28, 2019. Signed by Judge Emmet G. Sullivan on 4/30/2019. (lcegs1) (Entered: 04/30/2019)
Set/Reset Deadlines: President Supplemental Brief due by 5/14/2019. Plaintiff Opposition due by 5/21/2019. President Reply due by 5/28/2019. (mac) (Entered: 05/01/2019)
68 Consent MOTION for Extension of Time to File Answer re 14 Amended Complaint,,, and to File Rule 16.3 Report by DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Lin, Jean) (Entered: 05/03/2019)
69 ENTERED IN ERROR.....Consent MOTION for Extension of Time to File Rule 16.3 Report (same document as Docket No. 68) by DONALD J. TRUMP (Attachments: # 1 Text of Proposed Order)(Lin, Jean) Modified on 5/7/2019 (jf). (Entered: 05/03/2019)
NOTICE OF CORRECTED DOCKET ENTRY: Document No. re 69 Consent MOTION for Extension of Time to File Rule 16.3 Report (same document as Docket No. 68) was entered in error as a duplicate filing.(jf) (Entered: 05/07/2019)
MINUTE ORDER granting 68 consent motion for extension of time to answer and to file Local Civil Rule 16.3 Report. The defendant shall file his answer to the amended complaint, and the parties shall file their Local Civil Rule 16.3 Report by no later than May 28, 2019. Signed by Judge Emmet G. Sullivan on 5/7/2019. (lcegs1) (Entered: 05/07/2019)
Set/Reset Deadlines: Answer To The Amended Complaint And Parties To File Their Local Civil Rule 16.3 Report due by 5/28/2019. (mac) (Entered: 05/08/2019)
70 NOTICE of Appearance by Bradley P. Humphreys on behalf of DONALD J. TRUMP (Humphreys, Bradley) (Entered: 05/08/2019)
71 MOTION for Certification for interlocatory appeal of the Court's April 30, 2019 Order, MOTION to Stay Proceedings by DONALD J. TRUMP (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Lin, Jean) (Entered: 05/14/2019)
72 NOTICE of Appearance by James R. Powers on behalf of DONALD J. TRUMP (Powers, James) (Entered: 05/15/2019)
73 MOTION for Leave to File TO FILE BRIEF OF SCHOLAR SETH BARRETT TILLMAN AND JUDICIAL EDUCATION PROJECT AS AMICI CURIAE IN SUPPORT OF THE DEFENDANTS SUPPLEMENTAL BRIEF IN SUPPORT OF HIS

05/21/2019
05/28/2019 05/28/2019 05/28/2019 06/03/2019
06/12/2019 06/20/2019

MOTION PURSUANT TO 28 U.S.C. § 1292(b) FOR CERTIFICATION OF THE COURTS DENIAL OF THE MOTION TO DISMISS AND DEFENDANTS MOTION TO STAY by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN (Attachments: # 1 Exhibit A −BRIEF OF SCHOLAR SETH BARRETT TILLMAN AND JUDICIAL EDUCATION PROJECT AS AMICI CURIAE IN SUPPORT OF THE DEFENDANTS SUPPLEMENTAL BRIEF IN SUPPORT OF HIS MOTION PURSUANT TO 28 U.S.C. § 1292(b) FOR CERTIFICATION OF THE COURTS DENIAL OF MOTION TO DISMISS AND DEFENDANTS MOTION TO STAY, # 2 Text of Proposed Order)(Ray, Robert) (Entered: 05/21/2019)
74 Memorandum in opposition to re 71 MOTION for Certification for interlocatory appeal of the Court's April 30, 2019 Order MOTION to Stay Proceedings, 60 MOTION for Certification for interlocatory appeal of the Court's September 28, 2018 Order filed by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN. (Gorod, Brianne) (Entered: 05/21/2019)
75 MEET AND CONFER STATEMENT. (Attachments: # 1 Exhibit Proposed Scheduling Order)(Gorod, Brianne) (Entered: 05/28/2019)
76 ANSWER to 14 Amended Complaint,,, by DONALD J. TRUMP.(Lin, Jean) (Entered: 05/28/2019)
77 REPLY to opposition to motion re 71 MOTION for Certification for interlocatory appeal of the Court's April 30, 2019 Order MOTION to Stay Proceedings filed by DONALD J. TRUMP. (Lin, Jean) (Entered: 05/28/2019)
78 MOTION for Leave to File Surreply by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Attachments: # 1 Surreply, # 2 Text of Proposed Order)(Gorod, Brianne) (Entered: 06/03/2019)
79 MOTION for Joinder, MOTION to Enforce by JEFFREY CUTLER (Attachments: # 1 Exhibits)(jf) (Entered: 06/17/2019)
80 Consent MOTION to Amend/Correct Complaint by KAREN BASS, MICHAEL F. BENNET, RICHARD BLUMENTHAL, CORY A. BOOKER, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, DAVID N. CICILLINE, JAMES E. CLYBURN, STEVE COHEN, CHRISTOPHER A. COONS, CATHERINE CORTEZ MASTO, TED DEUTCH, TAMMY DUCKWORTH, RICHARD J. DURBIN, KIRSTEN E. GILLIBRAND, KAMALA D. HARRIS, MARTIN HEINRICH, MAZIE K. HIRONO, STENY H. HOYER, SHEILA JACKSON LEE, HAKEEM JEFFRIES, HENRY C. HANK JOHNSON, JR, TIM KAINE, AMY KLOBUCHAR, PATRICK LEAHY, TED W. LIEU, ZOE LOFGREN, EDWARD J. MARKEY, JEFF

06/20/2019 06/25/2019
06/25/2019 06/25/2019 06/25/2019
06/25/2019 06/25/2019
06/25/2019 06/25/2019 06/26/2019 06/26/2019

MERKLEY, CHRIS MURPHY, PATTY MURRAY, JERROLD NADLER, NANCY PELOSI, JAMIE RASKIN, JACK REED, CEDRIC L. RICHMOND, LINDA T. SANCHEZ, BERNARD SANDERS, BRIAN SCHATZ, ERIC SWALWELL, TOM UDALL, CHRIS VAN HOLLEN, ELIZABETH WARREN, SHELDON WHITEHOUSE, RON WYDEN (Attachments: # 1 Index to Exhibits, # 2 Second Amended Complaint, # 3 Redline Comparison, # 4 Proposed Order)(Gorod, Brianne) (Entered: 06/20/2019)
81 NOTICE OF SUPPLEMENTAL AUTHORITY by DONALD J. TRUMP (Attachments: # 1 Exhibit A)(Powers, James) (Entered: 06/20/2019)
MINUTE ORDER granting 73 MOTION for Leave to File TO FILE BRIEF OF SCHOLAR SETH BARRETT TILLMAN AND JUDICIAL EDUCATION PROJECT AS AMICI CURIAE IN SUPPORT OF THE DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF HIS MOTION PURSUANT TO 28 U.S.C. § 1292(b) FOR CERTIFICATION OF THE COURTS DENIAL OF THE MOTION TO DISMISS AND DEFENDANT'S MOTION TO STAY by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN. Signed by Judge Emmet G. Sullivan on 6/25/2019. (lcegs1) (Entered: 06/25/2019)
MINUTE ORDER granting 78 motion for leave to file surreply. Signed by Judge Emmet G. Sullivan on 6/25/2019. (lcegs1) (Entered: 06/25/2019)
82 VACATED PURSUANT TO COURT'S ORDER OF 8/21/2019.....ORDER denying 60 Motion for Certificate of Appealability; denying 71 Motion for Certificate of Appealability; finding as moot 71 Motion to Stay. Signed by Judge Emmet G. Sullivan on 6/25/2019. (lcegs1) Modified on 8/25/2019 (zcdw). (Entered: 06/25/2019)
MINUTE ORDER. In view of 75 Local Rule 16.3 Report, it is HEREBY ORDERED that other parties shall be joined and the pleadings amended by no later than June 26, 2019; and it is FURTHER ORDERED that fact discovery shall commence on June 28, 2019 and shall conclude on September 27, 2019; and it is FURTHER ORDERED that Plaintiffs shall file their motion for summary judgment by no later than 30 days after the close of discovery; Defendant shall file his opposition and cross−motion for summary judgment by no later than 30 days after Plaintiffs motion; Plaintiffs shall file their opposition and reply by no later than 21 days after Defendants motion; and Defendant shall file his reply by no later than 14 days after Plaintiffs opposition. Signed by Judge Emmet G. Sullivan on 6/25/2019. (lcegs1) (Entered: 06/25/2019)
MINUTE ORDER granting 80 Consent Motion to Amend/Correct. Signed by Judge Emmet G. Sullivan on 6/25/2019. (lcegs1) (Entered: 06/25/2019)
85 AMICUS BRIEF IN SUPPORT OF THE DEFENDANT'S SUPPLEMENTAL BRIEF IN SUPPORT OF HIS MOTION PURSUANT TO 28 U.S.C. § 1292(b) FOR CERTIFICATION OF THE COURTS DENIAL OF THE MOTION TO DISMISS AND DEFENDANT'S MOTION TO STAY by JUDICIAL EDUCATION PROJECT, SETH BARRETT TILLMAN. (jf) (Entered: 07/02/2019)
86 SURREPLY re 71 MOTION for Certification for interlocatory appeal of the Court's April 30, 2019 Order MOTION to Stay Proceedings filed by ALL PLAINTIFFS. (jf) (Entered: 07/02/2019)
87 SECOND AMENDED COMPLAINT against DONALD J. TRUMP filed by ALL PLAINTIFFS.(jf) (Entered: 07/02/2019)
Set/Reset Deadlines: Amended Pleadings due by 6/26/2019. Fact Discovery due by 9/27/2019. (mac) (Entered: 06/26/2019)
83 AMENDED COMPLAINT against DONALD J. TRUMP filed by NANCY PELOSI, STENY H. HOYER, KAMALA D. HARRIS, BERNARD SANDERS, CHRIS MURPHY, CATHERINE CORTEZ MASTO, BENJAMIN L. CARDIN, KAREN BASS, JACK REED, KIRSTEN E. GILLIBRAND, RON WYDEN, CHRISTOPHER A. COONS, ERIC SWALWELL, TOM UDALL, JAMIE RASKIN, SHEILA JACKSON LEE, MAZIE K. HIRONO, HENRY C. HANK JOHNSON, JR, MARIA CANTWELL, CEDRIC L. RICHMOND, TAMMY DUCKWORTH, TOM CARPER, RICHARD BLUMENTHAL, CHRIS VAN HOLLEN, JEFF MERKLEY, BRIAN SCHATZ, STEVE COHEN, CORY A. BOOKER, TED W. LIEU, EDWARD J.

07/08/2019 07/08/2019 07/08/2019 07/19/2019 07/19/2019 07/22/2019
07/22/2019 07/29/2019 08/05/2019
08/12/2019
08/21/2019
09/04/2019 09/04/2019 09/05/2019

MARKEY, MARTIN HEINRICH, TED DEUTCH, HAKEEM JEFFRIES, TIM KAINE, MICHAEL F. BENNET, AMY KLOBUCHAR, RICHARD J. DURBIN, LINDA T. SANCHEZ, SHELDON WHITEHOUSE, DAVID N. CICILLINE, ZOE LOFGREN, PATRICK LEAHY, PATTY MURRAY, JAMES E. CLYBURN, JERROLD NADLER, ELIZABETH WARREN.(Gorod, Brianne) (Entered: 06/26/2019)
88 WITHDRAWN PURSUANT TO NOTICE FILED ON 7/8/2019.....NOTICE of Petition for Writ of Mandamus by DONALD J. TRUMP (Lin, Jean); Modified on 7/9/2019 (tth). (Entered: 07/08/2019)
89 NOTICE of Withdrawal of Docket No. 88 by DONALD J. TRUMP re 88 Notice (Other) (Lin, Jean) (Entered: 07/08/2019)
90 NOTICE of Petition for Writ of Mandamus by DONALD J. TRUMP (Attachments: # 1 Exhibit Petition for Writ of Mandamus)(Lin, Jean) (Entered: 07/08/2019)
MINUTE ORDER. Upon consideration of the D.C. Circuit's Order in In re: Donald J. Trump, No. 19−5196 (D.C. Cir. July 19, 2019) (per curiam), the Court, sua sponte, temporarily stays discovery until further Order of this Court. Signed by Judge Emmet G. Sullivan on 7/19/2019. (lcegs3) (Entered: 07/19/2019)
92 ORDER of USCA ; USCA Case Number 19−5196. (zrdj) (Entered: 07/25/2019)
91 MINUTE ORDER. In view of the D.C. Circuit's Order in In re: Donald J. Trump, No. 19−5196 (D.C. Cir. July 19, 2019) (per curiam), the Court, sua sponte, ORDERS supplemental briefing limited to the issues raised in that Order. Defendant shall file his brief by no later than July 29, 2019; Plaintiffs shall file their response by no later than August 5, 2019; and Defendant shall file his reply by no later than August 12, 2019. Signed by Judge Emmet G. Sullivan on 7/22/2019. (lcegs1) (Entered: 07/22/2019)
Set/Reset Deadlines: Defendant Brief due by 7/29/2019. Plaintiff Response due by 8/5/2019. Defendant Reply due by 8/12/2019. (mac) (Entered: 07/22/2019)
93 RESPONSE TO ORDER OF THE COURT re 91 Order, and Supplemental Brief in Support of Defendant's Motion for Certification of the Court's September 28, 2018 and April 30, 2019 Orders Pursuant to 28 U.S.C. section 1292(b) and for a Stay Pending Appeal filed by DONALD J. TRUMP. (Humphreys, Bradley) (Entered: 07/29/2019)
94 RESPONSE TO ORDER OF THE COURT re 91 Order, PLAINTIFFS' SUPPLEMENTAL BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR CERTIFICATION PURSUANT TO 28 U.S.C. § 1292(b) AND MOTION FOR A STAY PENDING APPEAL filed by ALL PLAINTIFFS. (Gorod, Brianne) (Entered: 08/05/2019)
95 RESPONSE TO ORDER OF THE COURT re 91 Order, and Supplemental Reply Brief in Support of Defendant's Motion for Certification of the Court's September 28, 2018 and April 30, 2019 Orders Pursuant to 28 U.S.C. section 1292(b) and for a Stay Pending Appeal filed by DONALD J. TRUMP. (Powers, James) (Entered: 08/12/2019)
96 MEMORANDUM OPINION AND ORDER VACATING 82 Memorandum Opinion and Order, GRANTING 60 motion for certification for interlocutory appeal of the Court's September 28, 2018 Order, and GRANTING 71 motion for certification for interlocutory appeal of the Court's April 30, 2019 Order and for stay. Signed by Judge Emmet G. Sullivan on 8/21/2019. (lcegs1) (Entered: 08/21/2019)
97 NOTICE OF INTERLOCUTORY APPEAL as to 67 Order, Memorandum Opinion, 66 Order, 59 Memorandum & Opinion, 58 Order on Motion to Dismiss by DONALD J. TRUMP. Fee Status: No Fee Paid. Parties have been notified. (zrdj) (Entered: 09/05/2019)
99 ORDER of USCA USCA Case Number 19−8005. (See docket entry 97 (zrdj) (Entered: 09/05/2019)
98 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 97 Notice of Interlocutory

09/05/2019 03/31/2020 07/08/2020

Appeal. (zrdj) (Entered: 09/05/2019)
USCA Case Number 19−5237 for 97 Notice of Interlocutory Appeal filed by DONALD J. TRUMP. (zrdj) (Entered: 09/10/2019)
100 MANDATE of USCA as to 97 Notice of Interlocutory Appeal filed by DONALD J. TRUMP ; USCA Case Number 19−5237. (Attachment: # 1 USCA Judgment)(zsb) (Entered: 03/31/2020)
MINUTE ORDER. In view of 100 Mandate of the USCA, it is HEREBY ORDERED that this case is DISMISSED, and it is FURTHER ORDERED that 66 Order is VACATED as MOOT. Signed by Judge Emmet G. Sullivan on 7/8/2020. (lcegs1) (Entered: 07/08/2020)

 
 Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Senator RICHARD BLUMENTHAL 706 Hart Senate Office Building Washington, D.C. 20510,
Representative JOHN CONYERS, JR. 2426 Rayburn House Office Building Washington, D.C. 20515,
Senator RICHARD J. DURBIN 711 Hart Senate Office Building Washington, D.C. 20510,
Senator PATTY MURRAY 154 Russell Senate Office Building Washington, D.C. 20510,
Senator ELIZABETH WARREN 317 Hart Senate Office Building Washington, D.C. 20510,
Senator AMY KLOBUCHAR 302 Hart Senate Office Building Washington, D.C. 20510,
Senator BERNARD SANDERS 332 Dirksen Senate Office Building Washington, D.C. 20510,
Senator PATRICK LEAHY 437 Russell Senate Office Building Washington, D.C. 20510,
Senator SHELDON WHITEHOUSE 530 Hart Senate Office Building Washington, D.C. 20510,
Senator AL FRANKEN 309 Hart Senate Office Building Washington, D.C. 20510,
Senator CHRISTOPHER A. COONS 127A Russell Senate Office Building Washington, D.C. 20510,

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Civil Action No.

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Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 2 of 54

Senator MAZIE K. HIRONO

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730 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator MICHAEL F. BENNET

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261 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator CORY A. BOOKER

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141 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator MARIA CANTWELL 511 Hart Senate Office Building

) ) )

Washington, D.C. 20510,

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Senator BENJAMIN L. CARDIN

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509 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TOM CARPER

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513 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CATHERINE CORTEZ MASTO

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204 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator TAMMY DUCKWORTH

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542 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator KIRSTEN E. GILLIBRAND

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478 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator KAMALA D. HARRIS

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112 Hart Senate Office Building Washington, D.C. 20510,

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Senator MARTIN HEINRICH

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303 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TIM KAINE

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231 Russell Senate Office Building

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Washington, D.C. 20510,

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Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 3 of 54

Senator EDWARD J. MARKEY

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255 Dirksen Senate Office Building

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Washington, D.C. 20510,

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Senator JEFF MERKLEY

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313 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CHRIS MURPHY

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136 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator JACK REED 728 Hart Senate Office Building

) ) )

Washington, D.C. 20510,

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Senator BRIAN SCHATZ

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722 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TOM UDALL

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531 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CHRIS VAN HOLLEN

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110 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator RON WYDEN

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221 Dirksen Senate Office Building

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Washington, D.C. 20510,

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Representative NANCY PELOSI

) )

235 Cannon House Office Building

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Washington, D.C. 20515,

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Representative STENY H. HOYER

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1705 Longworth House Office Building Washington, D.C. 20515,

) ) )

Representative JAMES E. CLYBURN

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242 Cannon House Office Building

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Washington, D.C. 20515,

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Representative JOSEPH CROWLEY

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1035 Longworth House Office Building

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Washington, D.C. 20515,

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)

3

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 4 of 54

Representative LINDA T. SÁNCHEZ

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2329 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JERROLD NADLER

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2109 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ZOE LOFGREN

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1401 Longworth House Office Building

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Washington, D.C. 20515,

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Representative SHEILA JACKSON LEE 2187 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

)

Representative STEVE COHEN

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2404 Rayburn House Office Building

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Washington, D.C. 20515,

)

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Representative HENRY C. “HANK”

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JOHNSON JR.

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2240 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative TED DEUTCH

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2447 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative LUIS V. GUTIÉRREZ

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2408 Rayburn House Office Building

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Washington, D.C. 20515,

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)

Representative KAREN BASS

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2241 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative CEDRIC L. RICHMOND 420 Cannon House Office Building

) ) )

Washington, D.C. 20515,

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Representative HAKEEM JEFFRIES

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1607 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative DAVID N. CICILLINE

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2244 Rayburn House Office Building

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Washington, D.C. 20515,

)

4

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 5 of 54

Representative ERIC SWALWELL

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129 Cannon House Office Building

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Washington, D.C. 20515,

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Representative TED W. LIEU

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236 Cannon House Office Building

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Washington, D.C. 20515,

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Representative JAMIE RASKIN

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431 Cannon House Office Building

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Washington, D.C. 20515,

)

Representative PRAMILA JAYAPAL 319 Cannon House Office Building

) ) )

Washington, D.C. 20515,

)

Representative BRADLEY S. SCHNEIDER )

1432 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative ALMA ADAMS

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222 Cannon House Office Building

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Washington, D.C. 20515,

)

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Representative PETE AGUILAR

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1223 Longworth House Office Building

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Washington, D.C. 20515,

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)

Representative NANETTE DIAZ

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BARRAGÁN

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1320 Longworth House Office Building

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Washington, D.C. 20515,

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)

Representative JOYCE BEATTY

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133 Cannon House Office Building

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Washington, D.C. 20515,

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Representative DONALD S. BEYER, JR. 1119 Longworth House Office Building

) ) )

Washington, D.C. 20515,

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Representative EARL BLUMENAUER

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1111 Longworth House Office Building

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Washington, D.C. 20515,

)

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Representative LISA BLUNT ROCHESTER )

1123 Longworth House Office Building

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Washington, D.C. 20515,

)

5

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 6 of 54

Representative SUZANNE BONAMICI

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439 Cannon House Office Building

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Washington, D.C. 20515,

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)

Representative BRENDAN F. BOYLE

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1133 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative ROBERT A. BRADY

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2004 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative ANTHONY BROWN 1505 Longworth House Office Building

) ) )

Washington, D.C. 20515,

)

Representative JULIA BROWNLEY

)

1019 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative G.K. BUTTERFIELD

)

2080 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative MICHAEL E. CAPUANO

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1414 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative SALUD O. CARBAJAL

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212 Cannon House Office Building

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Washington, D.C. 20515,

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Representative TONY CÁRDENAS

) )

1510 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ANDRÉ CARSON

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2135 Rayburn House Office Building Washington, D.C. 20515,

) ) )

Representative KATHY CASTOR

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2052 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JOAQUIN CASTRO

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1221 Longworth House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 7 of 54

Representative JUDY CHU

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2423 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative KATHERINE CLARK

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1415 Longworth House Office Building

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Washington, D.C. 20515,

)

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Representative YVETTE D. CLARKE

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2058 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative WILLIAM LACY CLAY 2428 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

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Representative EMANUEL CLEAVER, II

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2335 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative GERALD E. CONNOLLY

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2238 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative JIM COOPER

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1536 Longworth House Office Building

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Washington, D.C. 20515,

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)

Representative ELIJAH E. CUMMINGS

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2163 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DANNY K. DAVIS

) )

2159 Rayburn House Office Building

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Washington, D.C. 20515,

)

Representative SUSAN A. DAVIS

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1214 Longworth House Office Building Washington, D.C. 20515,

) ) )

Representative PETER DEFAZIO

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2134 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative DIANA DEGETTE

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2111 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

7

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 8 of 54

Representative JOHN K. DELANEY

)

1632 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative ROSA L. DELAURO

)

2413 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative SUZAN K. DELBENE

)

2442 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative VAL BUTLER DEMINGS 238 Cannon House Office Building

) ) )

Washington, D.C. 20515,

)

Representative MARK DESAULNIER

)

115 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative DEBBIE DINGELL

)

116 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative LLOYD DOGGETT

)

2307 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MICHAEL F. DOYLE

)

239 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative KEITH ELLISON

) )

2263 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative ELIOT L. ENGEL

)

2462 Rayburn House Office Building Washington, D.C. 20515,

) ) )

Representative ANNA G. ESHOO

)

241 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative ADRIANO ESPAILLAT

)

1630 Longworth House Office Building

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Washington, D.C. 20515,

)

)

8

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 9 of 54

Representative DWIGHT EVANS

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1105 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative BILL FOSTER

)

1224 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative LOIS FRANKEL

)

1037 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative MARCIA L. FUDGE 2344 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

)

Representative TULSI GABBARD

)

1433 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative RUBEN GALLEGO

)

1218 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JOHN GARAMENDI

)

2438 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative AL GREEN

)

2347 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative GENE GREEN

) )

2470 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative RAUL M. GRIJALVA

)

1511 Longworth House Office Building Washington, D.C. 20515,

) ) )

Representative COLLEEN HANABUSA

)

422 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative ALCEE L. HASTINGS

)

2353 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

9

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 10 of 54

Representative DENNY HECK

)

425 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative BRIAN HIGGINS

)

2459 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative JAMES A. HIMES

)

1227 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JARED HUFFMAN 1406 Longworth House Office Building

) ) )

Washington, D.C. 20515,

)

Representative EDDIE BERNICE JOHNSON )

2468 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MARCY KAPTUR

)

2186 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative WILLIAM R. KEATING

)

2351 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ROBIN L. KELLY

)

1239 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JOSEPH P. KENNEDY III

) )

434 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative RO KHANNA

)

513 Cannon House Office Building Washington, D.C. 20515,

) ) )

Representative RUBEN J. KIHUEN

)

313 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative DANIEL T. KILDEE

)

227 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

10

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 11 of 54

Representative DEREK KILMER

)

1520 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative RAJA KRISHNAMOORTHI )

515 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative JAMES R. LANGEVIN

)

2077 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative RICK LARSEN 2113 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

)

Representative BRENDA L. LAWRENCE

)

1213 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative AL LAWSON

)

1337 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative BARBARA LEE

)

2267 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative SANDER M. LEVIN

)

1236 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JOHN LEWIS

) )

343 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative DAVE LOEBSACK

)

1527 Longworth House Office Building Washington, D.C. 20515,

) ) )

Representative ALAN LOWENTHAL

)

125 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative NITA M. LOWEY

)

2365 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

11

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 12 of 54

Representative BEN RAY LUJÁN

)

2231 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MICHELLE LUJAN

)

GRISHAM

)

214 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative CAROLYN B. MALONEY

)

2308 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative SEAN PATRICK MALONEY

) )

1027 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative DORIS MATSUI

)

2311 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative BETTY MCCOLLUM

)

2256 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative A. DONALD MCEACHIN

)

314 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative JAMES P. MCGOVERN

)

438 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative ANN MCLANE KUSTER

)

137 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative JERRY MCNERNEY 2265 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

)

Representative GREGORY W. MEEKS

)

2234 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative GRACE MENG

)

1317 Longworth House Office Building

)

Washington, D.C. 20515,

)

12

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 13 of 54

Representative GWEN S. MOORE

)

2252 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative SETH MOULTON

)

1408 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative GRACE F. NAPOLITANO

)

1610 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative RICHARD E. NEAL 341 Cannon House Office Building

) ) )

Washington, D.C. 20515,

)

Representative RICHARD M. NOLAN

)

2366 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative DONALD NORCROSS

)

1531 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative FRANK PALLONE, JR.

)

237 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative JIMMY PANETTA

)

228 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative BILL PASCRELL, JR.

) )

2370 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative DONALD M. PAYNE, JR.

)

132 Cannon House Office Building Washington, D.C. 20515,

) ) )

Representative ED PERLMUTTER

)

1410 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative SCOTT H. PETERS

)

1122 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

13

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 14 of 54

Representative CHELLIE PINGREE

)

2162 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative MARK POCAN

)

1421 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JARED POLIS

)

1727 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative DAVID E. PRICE 2108 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

)

Representative MIKE QUIGLEY

)

2458 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative KATHLEEN M. RICE

)

1508 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative LUCILLE ROYBAL-

)

ALLARD

)

2083 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative C. A. DUTCH

)

RUPPERSBERGER

)

2416 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative BOBBY L. RUSH

)

2188 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative TIM RYAN

) )

1126 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JOHN P. SARBANES

)

2444 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

)

14

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 15 of 54

Representative JAN SCHAKOWSKY

)

2367 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ADAM B. SCHIFF

)

2372 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ROBERT C. “BOBBY”

)

SCOTT

)

1201 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JOSÉ E. SERRANO

) )

2354 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative TERRI SEWELL

)

2201 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative CAROL SHEA-PORTER

)

1530 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative BRAD SHERMAN

)

2181 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ALBIO SIRES

)

2342 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative LOUISE M. SLAUGHTER

)

2469 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative ADAM SMITH 2264 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

)

Representative DARREN SOTO

)

1429 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JACKIE SPEIER

)

2465 Rayburn House Office Building

)

Washington, D.C. 20515,

)

15

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 16 of 54

Representative MARK TAKANO

)

1507 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative BENNIE G. THOMPSON

)

2466 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MIKE THOMPSON

)

231 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative DINA TITUS 2464 Rayburn House Office Building

) ) )

Washington, D.C. 20515,

)

Representative PAUL D. TONKO

)

2463 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative NORMA J. TORRES

)

1710 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative NIKI TSONGAS

)

1714 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JUAN VARGAS

)

1605 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative MARC VEASEY 1519 Longworth House Office Building

) ) )

Washington, D.C. 20515,

)

Representative FILEMON VELA

)

437 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative NYDIA M. VELÁZQUEZ

)

2302 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative TIMOTHY J. WALZ

)

2313 Rayburn House Office Building

)

Washington, D.C. 20515,

)

16

Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 17 of 54

Representative DEBBIE WASSERMAN

)

SCHULTZ

)

1114 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative MAXINE WATERS

)

2221 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative BONNIE WATSON

)

COLEMAN

)

1535 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative PETER WELCH

) )

2303 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative FREDERICA S. WILSON

)

2445 Rayburn House Office Building Washington, D.C. 20515,

) )

)

Representative JOHN YARMUTH

)

131 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Plaintiffs,

)

v.

)

)

DONALD J. TRUMP, in his official capacity )

as President of the United States of America )

1600 Pennsylvania Avenue, N.W.

)

Washington, D.C. 20500,

)

Defendant.

)

_____________________________________ )

COMPLAINT Senator Richard Blumenthal and Representative John Conyers, Jr., along with 194 other members of Congress, for their complaint against Donald J. Trump, in his official capacity as President of the United States of America, allege as follows:

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I. INTRODUCTION 1. Plaintiffs, 30 members of the United States Senate and 166 members of the United States House of Representatives, bring this action against President Donald J. Trump to obtain relief from the President’s continuing violation of the Foreign Emoluments Clause of the United States Constitution, which was designed to ensure that our nation’s leaders would not be corrupted by foreign influence or put their own financial interests over the national interest. To achieve those aims, the 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.”1 Through this measure, the nation’s Founders invested members of Congress with an important role in preventing the corruption and foreign influence that the Founders sought to avoid—permitting federal officeholders to accept otherwise prohibited “Emolument[s]” only if they first received “the Consent of the Congress.” 2. Defendant, President Donald J. Trump, has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments. By virtue of that financial interest, Defendant has accepted, or necessarily will accept, “Emolument[s]” from “foreign State[s]” while holding the office of President of the United States. 3. Because the Foreign Emoluments Clause requires the President to obtain “the Consent of the Congress” before accepting otherwise prohibited “Emolument[s],” Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds
1 U.S. Const. art. I, § 9, cl. 8. 18

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their “Consent” before the President accepts any such “Emolument.” 4. Despite this constitutional mandate, Defendant has chosen to accept numerous
benefits from foreign states without first seeking or obtaining congressional approval. Indeed, he has taken the position that the Foreign Emoluments Clause does not require him to obtain such approval before accepting benefits arising out of exchanges between foreign states and his businesses. Because Defendant has failed to come to Congress and seek its consent for at least some foreign emoluments that have been the subject of public reporting, it is impossible to know whether Defendant has also accepted, or plans to accept, other foreign emoluments that have not yet been made public. By accepting these benefits from foreign states without first seeking or obtaining congressional approval, Defendant has thwarted the transparency that the “Consent of the Congress” provision was designed to provide.
5. Moreover, by accepting these benefits from foreign states without first seeking or obtaining congressional approval, Defendant has also denied Plaintiffs the opportunity to give or withhold their “Consent” to his acceptance of individual emoluments and has injured them in their roles as members of Congress.
6. To redress that injury, Plaintiffs seek declaratory relief establishing that Defendant violates the Constitution when he accepts any monetary or nonmonetary benefit—any “present, Emolument, Office, or Title, of any kind whatever”—from a foreign state without first obtaining “the Consent of the Congress.” Plaintiffs also seek injunctive relief ordering Defendant not to accept any such benefits from a foreign state without first obtaining “the Consent of the Congress.”
II. PARTIES, JURISDICTION, AND VENUE 7. Richard Blumenthal is a United States Senator who represents the state of Connecticut. Senator Blumenthal is the Ranking Member of the Constitution Subcommittee of
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the Senate Judiciary Committee. 8. John Conyers, Jr. is a United States Representative who represents Michigan’s 13th
congressional district. Representative Conyers is the Ranking Member of the House Judiciary Committee.
9. Additional plaintiffs are the 29 members of the United States Senate and 165 members of the United States House of Representatives whose names appear in the caption of this Complaint.
10. As members of Congress, Plaintiffs have been entrusted by the Constitution with the important role of determining when the President and other individuals who hold an “Office of Profit or Trust” under the United States may accept “Emolument[s]” from “foreign States.” By empowering members of Congress with this important gatekeeping role, the Founders provided a mechanism by which federal officeholders could accept benefits from foreign governments in appropriate circumstances while still maintaining a structural safeguard against corruption and foreign influence.
11. Defendant Donald J. Trump is the President of the United States of America and thus holds an “Office of Profit or Trust” under the United States. He is being sued in his official capacity as President of the United States.
12. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 2201. 13. Venue is proper in this Court 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 District of Columbia is a “judicial district” in which the “defendant in the action resides,” in which “a substantial part of the events or omissions giving rise to the claim occurred,” and in which “a substantial part of property that is the subject of the action is situated.” For example,
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Trump International Hotel Washington, D.C., which is central to some of Plaintiffs’ allegations, is located in this district.
III. BACKGROUND 14. Article I, Section 9, Clause 8 of the U.S. Constitution provides: “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.” Commonly known as the “Foreign Emoluments Clause,” this provision reflects the Founders’ deep concern that corruption and foreign influence could undermine the new republic and harm the American people. 15. Because the Founders believed that corruption was one of the gravest threats to the new nation, they viewed anti-corruption measures as essential to preserving an enduring republican system of government. As George Mason warned his fellow delegates at the Constitutional Convention, “if we do not provide against corruption, our government will soon be at an end.”2 Thus, in drafting the Constitution, the Founders sought to ensure that “corruption was more effectually guarded against, in the manner this government was constituted, than in any other that had ever been formed.”3 Alexander Hamilton explained that “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”4 16. This preoccupation with stemming corruption, born of the Founders’ experience under British rule, pervaded the debates at the Constitutional Convention. According to James
2 1 The Records of the Federal Convention of 1787, at 392 (Max Farrand ed., 1911) [hereinafter “Convention Records”].
3 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 302 (Jonathan Elliot ed., 1836) [hereinafter “Elliot’s Debates”] (Charles Cotesworth Pinckney).
4 The Federalist No. 68, at 411 (Clinton Rossiter ed., 1961). 21

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Madison’s notes of the Convention, fifteen delegates used the word “corruption” no fewer than fifty-four times,5 and corruption was a topic of discussion on almost a quarter of the days that the Convention was in session.6 The Founders wanted to ensure that in the United States, unlike in Britain, the nation’s leaders would be dependent on the people alone—not on those who would give them financial benefits—and would be motivated solely by the national interest, not their own personal interests. To promote that goal, the Founders included in the nation’s new charter a number of safeguards against corruption. These safeguards took the form of “procedural devices and organizational arrangements” meant to ward off “dependency, cabals, patronage, unwarranted influence, and bribery.”7
17. The Founders were also deeply worried that foreign powers would interfere with America’s internal affairs, undermining the nation’s republican institutions and making its leaders subservient to foreign interests. Alexander Hamilton wrote that one of the vulnerabilities of republics “is that they afford too easy an inlet to foreign corruption.”8 During the Constitutional Convention, Elbridge Gerry warned that “[f]oreign powers will intermeddle in our affairs, and spare no expence to influence them,”9 while Gouverneur Morris invoked “the melancholy picture of foreign intrusions as exhibited in the History of Germany,” and “urged it as a standing lesson
5 James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. Pol. 174, 181 (1994).
6 Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 352 (2009). 7 Savage, supra note 5, at 181; see id. at 177-82 (describing how fear of corruption influenced the structure of the electoral college, Congress’s power to impeach, the prohibition on members of Congress holding other offices, and the prohibition on acceptance of foreign emoluments). 8 The Federalist No. 22, at 145 (Clinton Rossiter ed., 1961). 9 2 Convention Records 268 (Gerry).
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to other nations.”10 18. Of particular concern to the Founders was the risk that foreign states would give
benefits and rewards to the nation’s chief executive to subvert his loyalty. As Hamilton noted, the personal interest of a hereditary monarch was “so interwoven with that of the Nation . . . that he was placed above the danger of being corrupted from abroad.”11 By contrast, as Madison observed, an elected President would lack “that permanent stake in the public interest which would place him out of the reach of foreign corruption.”12 During the state debates over ratification of the Constitution, former delegate Charles Cotesworth Pinckney similarly explained that while “kings are less liable to foreign bribery and corruption . . . because no bribe that could be given them could compensate the loss they must necessarily sustain for injuring their dominions . . . . the situation of a President would be very different.” As a temporary officeholder, the President “might receive a bribe which would enable him to live in greater splendor in another country than his own; and when out of office, he was no more interested in the prosperity of his country than any other patriotic citizen.”13 This threat prompted the Founders to reject entrusting the treaty power solely to the President—susceptible as he was to foreign influence—and instead to require Senate approval, among other precautions.14
19. As the Founders saw it, the dangers of corruption and foreign influence were joined together in the contemporary European practice of diplomatic gift-giving. Eighteenth-century ambassadors and ministers were typically bestowed lavish presents by the monarchs with whom
10 1 Convention Records 530 (Morris). 11 Id. at 289 (Hamilton). 12 Id. at 138 (Madison). 13 4 Elliot’s Debates 264 (Charles Cotesworth Pinckney). 14 See id. at 264-65.
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they dealt, often consisting of “jewels, plate, tapestry, or porcelain, or sometimes of money.”15 The “usual presents from the European Courts” varied by country, and “in Holland, it was customary to give a gold chain and medal; in France, a gold snuff-box; and in Spain, a picture.”16 America’s Founders, however, made a clean break from such customs as soon as they established their own national government under the Articles of Confederation, prohibiting “any person holding any office of profit or trust under the United States, or any of them” from “accept[ing] any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.”17 Emphatically rejecting the custom of foreign gift acceptance, the Founders sought to cultivate undivided loyalty on the part of American officeholders. Absolute in its language, there was, in practice, only one exception to the ban: an officeholder could accept a foreign benefit if it was presented to Congress and if Congress approved of its receipt.18
20. This restriction on accepting foreign emoluments was one of the few measures to be transferred from the Articles of Confederation to the new Constitution in 1787, reflecting its importance to the Founding generation. At Philadelphia, the Foreign Emoluments Clause was added to the draft of the new Constitution by unanimous agreement of the state delegations after Charles Pinckney “urged the necessity of preserving foreign Ministers & other officers of the U.S.
15 4 John Bassett Moore, A Digest of International Law 578 (1906) (quoting Letter from William Temple Franklin to Thomas Jefferson (Apr. 27, 1790)).
16 5 Annals of Cong. 1589 (1798) (Joseph Gales ed., 1834) (Bayard). 17 Articles of Confederation of 1781, art. VI, para. 1. 18 See Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 16 n.4 (1994) (citing instances under the Articles in which Congress consented to American officials’ acceptance of gifts from foreign monarchs); 5 Annals of Cong. 1585 (1798) (Otis) (citing officials who were offered gifts from foreign governments and presented those gifts to Congress for approval).
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independent of external influence.”19 In adding that Clause, the Founders largely borrowed the language of the precursor provision in the Articles of Confederation, but they made one important change: they “institutionalized the practice” that federal officeholders could accept otherwise prohibited emoluments from foreign states if they first obtained the consent of Congress.20
21. During ratification, Edmund Jennings Randolph emphasized the twin evils that the Clause was meant to avert, explaining that “[i]t 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.”21 A prominent contemporary pamphleteer urging ratification stressed the value of the Clause in similar terms: “The influence which foreign powers may attempt to exercise in our affairs was foreseen, and a wholesome provision has been made against it.”22 In sum, the Clause was “founded in a just jealousy of foreign influence of every sort.”23
22. Because the Founders wanted to eliminate “foreign influence of every sort,” they drafted the Clause with language “both sweeping and unqualified,”24 “prohibit[ing] those holding offices of profit or trust under the United States from accepting ‘any present, Emolument,
19 2 Convention Records 389; see id. at 384. 20 See Emoluments Clause, The Heritage Guide to the Constitution, http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause (last visited June 12, 2017). 21 3 Convention Records 327. 22 Tench Coxe, An Examination of the Constitution for the United States of America, No. 4 (Oct. 21, 1787), in The Federalist and Other Contemporary Papers on the Constitution of the United States 769 (E.H. Scott ed., 1894). 23 Joseph Story, Commentaries on the Constitution of the United States § 1352 (5th ed. 1891). 24 Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. at 17.
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Office, or Title, of any kind whatever’ from ‘any . . . foreign State’ unless Congress consents.”25
Consistent with that broad language, the Clause has been understood to be “‘directed against every
kind of influence by foreign governments upon officers of the United States,’ in the absence of
consent by Congress.”26
23. Notably, the word “emolument” was defined broadly in the eighteenth century to
mean “profit,” “advantage,” “benefit,” and “comfort.”27 Contemporary writers used the term to
refer, among other things, to profits accruing from private commerce.28 Founding-era statesmen
including George Washington and James Madison likewise used the term when referring to “the
consequences of ordinary business dealings.”29 And Governor Randolph’s comments at the
Virginia Ratifying Convention, specifically addressing the Foreign Emoluments Clause, reflected
this broad definition as well.30
24. Thus, it has long been understood by Congress and the executive branch that the
25 Id. (quoting U.S. Const., art. I, § 9, cl. 8 (emphasis added by Office of Legal Counsel)). 26 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98 (1986) (quoting 24 Op. Att’y Gen. 116, 117 (1902)). 27 Oxford English Dictionary (2d ed. 1989) (citing eighteenth-century texts for definition of “emolument” meaning “Advantage, benefit, comfort”); Samuel Johnson, A Dictionary of the English Language (1755) (defining “emolument” as “Profit; advantage”); see, e.g., Jonathan Swift, The Tale of a Tub 91 (Henry Morley ed., 1889) (1704) (“And so I proceed with great content of mind upon reflecting how much emolument this whole globe of earth is like to reap by my labours.”). 28 See, e.g., Samuel Johnson, Taxation No Tyranny: An Answer to the Resolutions and Address of the American Congress 9 (1775) (“A merchant’s desire is not of glory, but of gain; not of publick wealth, but of private emolument; he is, therefore, rarely to be consulted about war and peace, or any designs of wide extent and distant consequence.”). 29 John Mikhail, A Note on the Original Meaning of “Emolument,” Balkinization (Jan. 18, 2017) (citing examples), https://balkin.blogspot.com/2017/01/a-note-on-original-meaning-ofemolument.html. 30 Randolph observed in his comments that “[a]ll men have a natural inherent right of receiving emoluments from any one, unless they be restrained by the regulations of the community.” 3 Convention Records 327.
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Foreign Emoluments Clause applies to the acceptance of any benefits or advantages from foreign states—including compensation for services rendered in a private capacity. Benefits and advantages that have been viewed as falling within the scope of the Clause include the following:
a. A NASA employee’s receipt of a $150 consulting fee for reviewing a Ph.D. thesis.31
b. Payments to a Nuclear Regulatory Commission employee by an American consulting firm for work regarding the construction of a Mexican government power plant.32
c. Payments to a part-time Nuclear Regulatory Commission staff consultant by an American corporation for work on a contract with the government of Taiwan.33
d. Payments to members of the Administrative Conference of the United States, by those members’ law firms, of “a share of partnership earnings, where some portion of that share is derived from the partnership’s representation of a foreign government.”34
e. A retired U.S. Air Force member’s employment “as a teacher in a local borough
31 Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Memorandum for H. Gerald Staub, Office of Chief Counsel, NASA, Re: Emoluments Clause Questions raised by NASA Scientist’s Proposed Consulting Arrangement with the University of New South Wales 2-3 (May 23, 1986).
32 Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 156 (1982).
33 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. at 96.
34 Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 120 (1993).
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high school in the United Kingdom.”35
f. A courthouse employee’s “receipt of pension payments from the British Government.”36
g. A Post Office clerk’s acceptance of an honorary military insignia from the German government.37
h. A gift of photographs to U.S. military and civilian officers by a foreign prince as “a simple remembrance of courtesy.”38
i. A Navy surgeon’s receipt of a “token of thankfulness” from a foreign government for his services on behalf of one of its citizens.39
25. As these examples illustrate, the Clause has long been understood to apply to any
rewards or benefits given by foreign states—whether tangible or honorary, monetary or
nonmonetary, of great value or slight. This interpretation prevents officeholders from accepting
anything from a foreign state that might weaken their independence or cause them to act against the national interest—a danger the Founders perceived even in the “trifling presents”40 of ornament
and jewelry that were customary of European diplomacy and that motivated the adoption of the
35 Comptroller General, Matter of: Major James D. Dunn & Senior Master Sergeant Marcus A. Jenkins, B-251084 (Oct. 12, 1993).
36 Comptroller General, Officers and Employees—Acceptance of Foreign Presents, Emoluments, Etc.—Court Employees, B-132808 (Aug. 26, 1957).
37 Delivery of an Insignia from the German Emperor to a Clerk in the Post-Office Dep’t, 27 Op. Att’y Gen. 219, 220 (1909).
38 Gifts from Foreign Prince—Officer—Constitutional Prohibition, 24 Op. Att’y Gen. 116, 118 (1902).
39 A Resolution allowing Doctor E.K. Kane, and the Officers associated with him in their late Expedition to the Artic seas, in search of Sir John Franklin, to accept such Token of Acknowledgment from the Government of Great Britain as it may please to present, Aug. 30, 1856, 11 Stat. 152.
40 5 Annals of Cong. 1587 (1798) (Bayard).
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Clause.41 26. By entrusting Congress with responsibility for deciding which specific benefits
could be received from foreign states, the Founders ensured that federal officeholders would not decide for themselves whether particular emoluments were likely to compromise their own independence or lead them to put personal interest over national interest. An officeholder, in short, would not be the sole judge of his own integrity. The important separation-of-powers principle embodied in Congress’s gatekeeping role also ensured that any acceptance of foreign “Emolument[s]” would be transparent and subject to public examination, further minimizing the dangers of corruption and influence that such transfers of wealth or benefit might otherwise pose.
27. When Congress was first called upon to exercise this responsibility in 1798,42 lawmakers reaffirmed the views expressed a decade earlier during the Constitution’s ratification about the dangers of foreign manipulation and the importance of the Foreign Emoluments Clause in guarding against it. Representative William C.C. Claiborne described the Clause as “intended to lock up every door to foreign influence, to the influence of Courts and Monarchies, which could not but prove baneful to every free country.”43 Representative James Bayard noted that “[i]f presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that
41 See supra, ¶¶ 19-20. 42 Former envoy Thomas Pinckney was offered “the customary presents” by the kings of England and Spain, but “declined receiving them, saying, that he would lay the matter before Congress.” 5 Annals of Cong. 1590 (1798) (Rutledge). The Senate authorized acceptance of the presents, but the House withheld its consent, see id. at 1570-93, subsequently passing a resolution to clarify that the Congressmen “were induced to such refusal solely by motives of general policy, and not by any view personal to the said Thomas Pinckney,” id. at 1775. 43 5 Annals of Cong. 1584 (1798) (Claiborne); see id. at 1587.
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which was loading them with favors.”44 Representative Matthew Lyon expressed a refusal to consent to the acceptance of any foreign emoluments, as “he should not be willing to lay this country under an obligation to a foreign country by our Ministers accepting presents.”45
28. At the same time, lawmakers stressed that the dangers of foreign influence and divided loyalty were reduced when officeholders obeyed the Constitution’s mandate by seeking the consent of Congress before accepting any foreign benefit. As Representative Bayard explained, the Clause required officeholders “to make known to the world whatever presents they might receive from foreign Courts and to place themselves in such a situation as to make it impossible for them to be unduly influenced by any such presents.”46 Representative Harrison Gray Otis likewise noted: “When every present to be received must be laid before Congress, no fear need be apprehended from the effects of any such presents. For, it must be presumed, that the gentleman who makes the application has done his duty, as he, at the moment he makes the application, comes before his country to be judged.”47
29. In short, as Secretary of State Madison explained in 1803, “the Constitution of the United States has left with Congress the exclusive authority to permit the acceptance of presents from foreign governments by persons holding offices under the United States.”48 In order “to exclude corruption and foreign influence,”49 an officeholder must “make known to the world”50
44 Id. at 1583 (Bayard). 45 Id. at 1589 (Lyon). 46 Id. at 1583 (Bayard). 47 Id. at 1585 (Otis). 48 Letter from James Madison to David Humphreys (Jan. 5, 1803), in 4 Moore, supra note 15, at 579. 49 3 Convention Records 327 (Randolph). 50 5 Annals of Cong. 1583 (1798) (Bayard).
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any benefit he wishes to accept from a foreign state and “come before his country to be judged”51 by seeking “the Consent of the Congress.”52
30. By extending the reach of these important rules to everyone who holds “any Office of Profit or Trust” under the United States, the Founders ensured that the Foreign Emoluments Clause would apply to all federal officeholders and thus guard against corruption in the highest reaches of the new nation’s government.53 Such officeholders naturally included the President of the United States. As Randolph explained at the Virginia Ratifying Convention, “[t]here is another provision against the danger . . . 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.”54 And as noted, the Founders were especially afraid that foreign nations would use favors to subvert the loyalty of the President.55
31. Historically, presidents have respected their obligations under the Foreign Emoluments Clause and have declined to accept presents or emoluments from foreign states without obtaining the consent of Congress:
a. President Andrew Jackson transmitted to Congress in 1830 a commemorative gold medal that Colombia’s president Simón Bolívar had presented to him.
51 Id. at 1585 (Otis). 52 U.S. Const. art. I, § 9, cl. 8. 53 Emoluments Clause, The Heritage Guide to the Constitution, supra note 20 (“the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government”). 54 David Robertson, Debates and other Proceedings of the Convention of Virginia 345 (2d ed. 1805) (1788). 55 See supra, ¶ 18.
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Congress directed that the medal be “deposited in the Department of State.”56 b. President Martin Van Buren in 1840 was offered two horses, a case of rose oil,
five bottles of rose water, a package of cashmere shawls, a Persian rug, a box of pearls, and a sword by the Imam of Muscat.57 Writing to the Imam, Van Buren explained that “a fundamental law of the Republic which forbids its servants from accepting presents from foreign States or Princes, precludes me from receiving” the items.58 Van Buren then apprised Congress of the gifts: “I deem it my duty to lay the proposition before Congress, for such disposition as they may think fit to make of it.”59 Congress directed him to deposit the items with the State Department, selling any items that could not “conveniently be deposited or kept” there and placing the proceeds with the U.S. Treasury.60 c. President John Tyler in 1843 was offered two horses by the Imam of Muscat. He notified Congress, seeking direction regarding the disposition of the gifts.61 Congress directed Tyler to sell the horses at auction and place the proceeds with
56 See Message from the President of the United States, at 3 (Jan. 22, 1834), in Message from the President of the United States to the Two Houses of Congress at the Commencement of the First Session of the Twenty-Third Congress, at 259 (1833).
57 14 Abridgment of the Debates of Congress from 1789 to 1856, at 140-41 (Thomas Hart Benton ed., 1860).
58 Id. at 141 (reprinting Letter from Martin Van Buren to Syed Bin Sutan, Imaum of Muscat (May 8, 1840)).
59 Id. at 140 (reprinting Letter from Martin Van Buren to the Senate (May 21, 1840)). 60 Joint Resolution No. 4, A Resolution to authorize the President to dispose of certain presents from the Imaum of Muscat and the Emperor of Morocco, July 20, 1840, 5 Stat. 409. 61 4 Moore, supra note 15, at 582.
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the U.S. Treasury.62 d. President Abraham Lincoln wrote to the King of Siam in 1862 regarding gifts
that the King had sent to the President—two decorative elephant tusks, an ornate sword, and a photograph of the King. Lincoln wrote that “our laws forbid the President from receiving these rich presents as personal treasures. . . . Congress being now in session at this capital, I have had great pleasure in making known to them this manifestation of Your Majesty’s munificence and kind consideration.”63 Congress directed that the items be deposited with the Department of the Interior.64 e. President Benjamin Harrison had “certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President of the United States.”65 In 1896, Congress authorized him to personally accept the medals.66 f. President John F. Kennedy was offered honorary Irish citizenship in 1963 by the government of Ireland. The White House sought the views of the Department of Justice’s Office of Legal Counsel, which advised that acceptance
62 An Act to authorize the sale of two Arabian horses, received as a present by the Consul of the United States at Zanzibar, from the Imaum of Muscat, Mar. 1, 1845, 5 Stat. 730.
63 Letter from Abraham Lincoln, President of the United States of America, to His Majesty Somdetch Phra Paramendr Maha Mongut, King of Siam (Feb. 3, 1862), available at http://quod.lib.umich.edu/l/lincoln/lincoln5/1:269.1?rgn=div2;view=fulltext.
64 Joint Resolution No. 20, A Resolution providing for the Custody of the Letter and Gifts from the King of Siam, Mar. 15, 1862, 12 Stat. 616.
65 Joint Resolution No. 39, Joint Resolution to authorize Benjamin Harrison to accept certain medals presented to him while President of the United States, Apr. 2, 1896, 29 Stat. 759.
66 Id. 33

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would implicate the Foreign Emoluments Clause.67 Kennedy declined to accept the honor.68 g. President Barack Obama was named the winner of the Nobel Peace Prize in 2009. The White House sought the views of the Office of Legal Counsel, which advised that acceptance of the prize would not fall within the Foreign Emoluments Clause because the Nobel Committee that awards the prize is not a foreign state or controlled by a foreign state.69 32. In sum, past presidents have recognized that they are bound by the Foreign Emoluments Clause and have responded accordingly—either seeking Congress’s consent to accept foreign emoluments or simply choosing not to receive them. 33. Although Defendant Donald J. Trump has accepted the privilege of occupying the highest office in the land, he is not obeying the same rules as the federal officers and employees described above or following the example of compliance set by former presidents. He has refused to divest from his businesses and instead continues to accept financial payments and other benefits from foreign states through his many business entities without first obtaining the consent of Congress.
67 Norbert A. Schlei, Office of Legal Counsel, Proposal That the President Accept Honorary Irish Citizenship: Memorandum Opinion for the Special Assistant to the President 278 (May 10, 1963).
68 See Clodagh Sheehy, JFK Had To Turn Down Citizenship Offer From Government, Irish Indep. (Dec. 29, 2006), http://www.independent.ie/irish-news/jfk-had-to-turn-downcitizenship-offer-from-government-26352995.html.
69 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, 1 (2009).
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IV. RELEVANT FACTS A. Defendant’s Acceptance of Emoluments from Foreign States 34. Defendant is the owner, in whole or in part, of hundreds of businesses, which are “linked in a complex network of interconnected individual corporations, limited liability companies and partnerships. The list includes more than 500 separate entities—hotels, golf courses, media properties, books, management companies, residential and commercial buildings, . . . airplanes and a profusion of shell companies set up to capitalize on licensing deals.”70 These business interests are located in the United States and in at least twenty foreign countries.71 35. While it is well known that Defendant’s business empire is vast and global, the exact nature of his holdings and the benefits he receives from them remain unclear. Defendant has refused to release his tax returns, and the complicated interconnection between the hundreds of discrete business entities and shell companies in which he owns an interest makes it impossible to determine the full scope of the benefits he is currently accepting from foreign states. 36. Defendant has not divested or otherwise given up his ownership interest in his worldwide business holdings since he was elected President of the United States. 37. Defendant has acknowledged, through his personal attorney, that his businesses receive funds and make a profit from payments by foreign governments, and that they will continue
70 John W. Schoen, Inside Trump’s Holdings: A Web of Potential Conflicts, CNBC.com (Jan. 23, 2017), http://www.cnbc.com/2017/01/19/inside-trumps-holdings-a-web-of-potentialconflicts.html.
71 Marilyn Geewax, Trump’s Businesses and Potential Conflicts: Sorting It Out, NPR (Dec. 5, 2016), http://www.npr.org/2016/12/05/503611249/trumps-businesses-and-potentialconflicts-sorting-it-out; see Donald J. Trump, U.S. Office of Gov’t Ethics Form 278e (May 16, 2016), available at https://www.documentcloud.org/documents/2838696-Trump-2016-FinancialDisclosure.html.
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to do so while he is President.72 Further, public reporting has confirmed that Defendant and his businesses have already accepted some benefits from foreign states since he took office.73
38. Defendant has not sought “the Consent of the Congress” with respect to any of the benefits that he has accepted, or will accept, from foreign states in conjunction with his business holdings.
39. Because Defendant has failed to come to Congress and seek consent before accepting foreign emoluments that have been confirmed through public reporting, it is impossible to know whether Defendant is accepting other foreign emoluments that have not yet been made public. Indeed, through his personal attorney, Defendant has indicated that he does not believe the Constitution requires him to seek or obtain Congress’s consent before accepting benefits arising out of exchanges between foreign states and his businesses.74
40. Because Defendant has not sought congressional consent before accepting these foreign emoluments, nor provided information about them to Congress, Plaintiffs are unable to exercise their constitutional prerogative to authorize or reject the specific emoluments he is accepting. While some information about Defendant’s financial dealings with foreign states is publicly available in press reports and financial disclosures, that information is fragmentary. Even where reliable sources confirm specific transactions between foreign states and Defendant’s businesses, the complex structure of those transactions and Defendant’s financial holdings makes
72 See Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017) (statement of Sheri A. Dillon, Partner, Morgan, Lewis & Bockius LLP), https://www.nytimes.com/2017/01/11/us/politics/trump-press-conference-transcript.html.
73 See infra, ¶¶ 43-62. 74 See, e.g., Donald Trump’s News Conference: Full Transcript and Video, supra note 72 (statement of Sheri A. Dillon) (“The Constitution does not require [Defendant] to do anything here.”).
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it impossible to determine precisely how a given arrangement benefits him or affects the foreign state in question.75 Without that information, Plaintiffs cannot judge whether they should consent to the acceptance of any particular payment or other benefit from a foreign state, as the Constitution requires.
41. In sum, Defendant’s refusal to disclose to Congress the foreign emoluments he wishes to accept makes it impossible for Plaintiffs to judge whether any specific foreign emolument should be approved. Defendant has therefore denied Plaintiffs the opportunity to decide, on a case-by-case basis, whether to authorize his acceptance of particular emoluments from foreign states. The Constitution expressly demands that Plaintiffs be given that opportunity.
42. By accepting benefits from foreign states without first obtaining “the Consent of the Congress,” Defendant is therefore committing numerous violations of the Foreign Emoluments Clause. Some of these violations have been partially described in media reports and other publicly available sources, as detailed below. But because Defendant refuses to come to Congress and seek consent, thereby preventing the transparency that “the Consent of the Congress” was designed to provide, other violations, upon information and belief, remain completely hidden.76
75 See Susanne Craig, Trump’s Empire: A Maze of Debts and Opaque Ties, N.Y. Times (Aug. 20, 2016), https://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html?_r=0.
76 The various foreign benefits discussed below—payments, loans, permits, exemptions, policy changes, and intellectual property rights—may constitute prohibited “present[s]” under the Foreign Emoluments Clause in addition to prohibited “Emolument[s].” Historically, certain awards and benefits have been understood by Congress and the executive branch to be prohibited by the Clause without a determination of which specific term or terms they implicate. See, e.g., Schlei, supra note 67, at 280 (“medals and decorations have always been regarded as coming within the constitutional provision, although it has never been precisely articulated whether one of these constitutes a ‘present, Emolument, Office, or Title’”). Whether any of the benefits discussed below constitutes a “present” depends on its terms and the circumstances under which it is conferred—information that Defendant has not fully disclosed.
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Acceptance of Intellectual Property Rights 43. On February 14, 2017, the Chinese government registered a trademark to Defendant for branded construction services, “the result of a 10-year legal battle that turned in [Defendant]’s favor after he declared his candidacy.”77 44. On February 27 and March 6, 2017, the Chinese government granted preliminary approval of 38 new trademarks to Defendant and one of his companies, covering “branded spa and massage services, golf clubs, hotels, insurance, finance and real estate companies, restaurants, bars, and a trademark class that covers bodyguards, social escorts, and concierge services.”78 Circumstances suggest that these trademarks were approved or expedited as a result of Defendant’s status as President of the United States. The director of a Hong Kong intellectual property consultancy, for instance, “said he had never seen so many applications approved so expeditiously,”79 and the approvals closely followed Defendant’s abrupt decision as President to honor the one-China policy, in contrast to his earlier statements.80 45. In May 2017, the Chinese government granted Defendant preliminary approval of two more trademarks, one for catering services and one that “can be used in clothing like trousers,
77 Erika Kinetz, China Grants Preliminary Approval to 38 New Trump Trademarks, AP (Mar. 9, 2017), https://apnews.com/8f54b14808a2459f9efcb0089f41f056/China-grantspreliminary-approval-to-38-new-Trump-trademarks.
78 Id. Trademarks that receive preliminary approval are automatically registered after ninety days if there are no objections. Id.
79 Id. 80 Simon Denyer & Philip Rucker, Backing Away From a Fight, Trump To Honor OneChina Policy, Wash. Post (Feb. 10, 2017), https://www.washingtonpost.com/world/asia_pacific/trump-agrees-to-honor-one-china-policy-incall-to-xi-jinping/2017/02/10/ea6e7ece-ef4a-11e6-9973c5efb7ccfb0d_story.html?utm_term=.655101b0f540.
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underwear and suits.”81 46. Possession of these various trademarks “offers a potential business foothold for
[Defendant]’s family company and protects his name in a country notorious for counterfeiters,”82 benefits that are of particular value to Defendant as his company prepares to build twenty to thirty hotels in major Chinese cities.83 By accepting the registration of these trademarks, Defendant has violated the Foreign Emoluments Clause because he did not first seek and obtain “the Consent of the Congress” before accepting these benefits from a foreign state.
47. As of April 2017, according to one investigation, Defendant’s companies had 157 trademark applications pending in 36 foreign nations.84 Accepting the registration of these trademarks would violate the Foreign Emoluments Clause unless Defendant first sought and obtained “the Consent of the Congress,” which he has not done.
Acceptance of Payments for Hotel Rooms and Events 48. In 2013, Trump Old Post Office LLC signed a lease with the General Services Administration, so it could house Trump International Hotel Washington, D.C. in the Old Post Office building located at 1100 Pennsylvania Avenue, N.W., Washington, D.C. 20004. Defendant
81 Paul Mozur, Trump Awarded a New Chinese Trademark, This Time for Catering, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/business/trump-chinatrademark.html; Sui-Lee Wee, Trump Adds Another Chinese Trademark to His Portfolio, N.Y. Times (May 23, 2017), https://www.nytimes.com/2017/05/23/business/trump-chinatrademarks.html?_r=1.
82 Kinetz, supra note 77. 83 Rob Schmitz, Trump’s Hotels In China Could Be a Conflict for the President-Elect, NPR (Nov. 24, 2016), http://www.npr.org/2016/11/24/503236237/trumps-hotels-in-china-couldbe-a-conflict-for-the-president-elect. 84 Sharon LaFraniere & Danny Hakim, Trump’s Trademark Continues Its March Across the Globe, Raising Eyebrows, N.Y. Times (Apr. 11, 2017), https://www.nytimes.com/2017/04/11/us/politics/trump-trademark-ethics.html.
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owns approximately 77 percent of Trump Old Post Office LLC.85 49. Defendant’s Washington, D.C. hotel has been “actively courting” foreign diplomats
for their business,86 including hiring a “director of diplomatic sales” and hosting an event soon after the November 2016 election in which “[a]bout 100 foreign diplomats, from Brazil to Turkey” were given “a sales pitch about [Defendant]’s newest hotel.”87
50. According to public reports, diplomats plan to stay at the hotel to curry favor with Defendant: “In interviews with a dozen diplomats . . . some said spending money at Trump’s hotel is an easy, friendly gesture to the new president.”88 According to an Asian diplomat, “Why wouldn’t I stay at [Defendant’s] 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?’”89 One Middle Eastern diplomat put it even more simply: “Believe me, all the delegations will go there.”90
51. By virtue of his ownership of the Trump International Hotel Washington, D.C., Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality every time foreign diplomats stay at the hotel, foreign embassies hold events there, or foreign governments otherwise pay for rooms there. On information and belief,
85 See U.S. Office of Gov’t Ethics Form 278e, supra note 71. 86 Eric Lipton & Susanne Craig, At Trump Hotel in Washington, Champagne Toasts in an Ethical ‘Minefield,’ N.Y. Times (Jan. 19, 2017), https://www.nytimes.com/2017/01/19/us/politics/trump-international-hotel-ethics.html. 87 Jonathan O’Connell & Mary Jordan, For Foreign Diplomats, Trump Hotel Is Place To Be, Wash. Post (Nov. 18, 2016), https://www.washingtonpost.com/business/capitalbusiness/2016/11/18/9da9c572-ad18-11e6977a-1030f822fc35_story.html?utm_term=.1a4c839c9c6a. 88 Id. 89 Id. 90 Id.
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there have been at least three such incidents since Defendant’s inauguration:
a. In late January 2017, “[a] lobbying firm working for Saudi Arabia paid for a
room at [Defendant]’s Washington hotel after Inauguration Day,” as part of its
effort to bring activists to Washington “to urge Congress to repeal the law letting 9/11 victims’ families sue the kingdom.”91 This transaction marked “the
first publicly known payment on behalf of a foreign government to a Trump property since [Defendant] became president.”92 The lobbying firm made
additional payments to the hotel in early February 2017, and all payments were reimbursed by the Saudi government.93 Between November 2016 and February
2017, the firm paid Defendant’s hotel approximately $270,000 for lodging, catering, and parking—all reimbursed by the Saudi government.94
b. On February 22, 2017, the Embassy of Kuwait held its National Day Celebration at Trump International Hotel Washington, D.C.95 According to
cost estimates from the hotel, the price of the celebration was between $40,000 and $60,000.96
91 Isaac Arnsdorf, Saudis Foot Tab at Trump Hotel, Politico (Feb. 9, 2017), http://www.politico.com/story/2017/02/trump-hotel-saudi-arabia-234878?cmpid+sf.
92 Id. 93 Byron Tau & Rebecca Ballhaus, Trump Hotel Received $270,000 From Lobbying Campaign Tied to Saudis, Wall St. J. (June 5, 2017), https://www.wsj.com/articles/trump-hotelreceived-270-000-from-lobbying-campaign-tied-to-saudis-1496700739. 94 Id. Public reports do not indicate what portion of these payments were made after Defendant became President, though an executive from the lobbying firm has claimed that the majority of the payments occurred before he became President. Id. 95 Julia Harte, Kuwait Could Pay Up To $60,000 for Party at Trump Hotel in Washington, Reuters (Feb. 27, 2017), http://www.reuters.com/article/us-usa-trump-hotelidUSKBN1640LE. 96 Id.
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c. On or about April 6, 2017, the Ambassador & Permanent Representative of Georgia to the United Nations stayed at Trump International Hotel Washington, D.C.97
52. Defendant has not sought or received “the Consent of the Congress” to accept these “Emolument[s]” and is therefore violating the Foreign Emoluments Clause when he accepts such “Emolument[s].”
Acceptance of Payments Derived from Real Estate Holdings 53. Defendant owns Trump Tower, a mixed-use skyscraper located at 725 Fifth Avenue, New York, N.Y. 10022. Since Defendant became President, at least two entities owned by foreign states have been tenants of Trump Tower: (1) the Industrial and Commercial Bank of China, which is owned by China,98 and (2) the Abu Dhabi Tourism & Culture Authority, which is owned by the United Arab Emirates.99 54. By virtue of his ownership of Trump Tower and the leases of these entities, Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality. Defendant has not sought or received “the Consent of the Congress” to accept these “Emolument[s]” and is therefore violating the Foreign Emoluments Clause.
97 Kaha Imnadze (@kahaimnadze), Twitter (Apr. 6, 2017, 8:49 AM), https://twitter.com/kahaimnadze/status/850012655347789824.
98 Caleb Melby, Stephanie Baker, & Ben Brody, When Chinese Bank’s Trump Lease Ends, Potential Conflict Begins, Bloomberg Pol. (Nov. 28, 2016), https://www.bloomberg.com/politics/articles/2016-11-28/trump-s-chinese-bank-tenant-maynegotiate-lease-during-his-term.
99 Adam Schreck, In a First, Emirati Foreign Minister Defends Trump Visa Ban, AP (Feb. 1, 2017), http://bigstory.ap.org/article/4ecfcc9c03bb412fae7233be0f53f2b6/first-emiratiforeign-minister-defends-trump-visa-ban. According to a recent report, the Abu Dhabi tourism authority ended its lease effective January 31, 2017. Lorraine Woellert, Abu Dhabi Tourism Office Quits Trump Tower, Politico (June 6, 2017), http://www.politico.com/story/2017/06/06/abu-dhabi-trump-tower-tourism-office-239188.
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55. Defendant also owns Trump World Tower, which is located at 845 United Nations Plaza, New York, N.Y. 10017.
56. In 2001, the Kingdom of Saudi Arabia purchased a floor of Trump World Tower, and the floor currently belongs to the Saudi Mission to the United Nations.100 At the time of the sale, the floor had “yearly common charges of $85,585 for building amenities.”101
57. If Saudi Arabia continues to pay common charges to Defendant’s company, Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality, and he will have done so without first seeking and receiving “the Consent of the Congress,” in violation of the Foreign Emoluments Clause.
Acceptance of Licensing Fees for “The Apprentice” 58. While serving as President, Defendant remains an executive producer of the MGMproduced television show “The Apprentice.” In that role, he is contractually entitled to a percentage of the profits derived from licensing the show and its related spin-offs to television networks, including in foreign countries. “The show has current iterations in the U.K., Brazil, Bulgaria, Indonesia and Vietnam; each of these must pay MGM a licensing fee for the show’s name and set-up, a portion of which goes to Trump.”102 59. In the United Kingdom, the television network that pays these licensing fees is
100 Stephen Rex Brown, Exclusive: Donald Trump Made Millions from Saudi Government, but Trashes Hillary Clinton for Saudi Donations to Clinton Foundations, N.Y. Daily News (Sept. 4, 2016), http://www.nydailynews.com/news/politics/exclusive-donald-trumpmade-millions-saudi-government-article-1.2777211.
101 Id. 102 Madeline Berg, Here’s How Much Donald Trump Will Earn From Producing ‘Celebrity Apprentice,’ Forbes (Dec. 13, 2016), https://www.forbes.com/sites/maddieberg/2016/12/13/heres-how-much-trump-will-earn-fromproducing-celebrity-apprentice/#505f22311d0c.
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owned and operated by the government. Specifically, the state-owned network BBC One broadcasts a version of “The Apprentice,”103 for which the network pays a licensing fee, a portion
of which goes to Defendant.
60. By taking a portion of licensing fees paid by foreign governments, Defendant has
accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or
instrumentality, and he will have done so without first seeking and receiving “the Consent of the
Congress,” in violation of the Foreign Emoluments Clause.
Acceptance of Regulatory Benefits 61. Defendant is at least part owner of numerous business ventures around the world, including in Argentina,104 China,105 India,106 Indonesia,107 Scotland,108 Turkey,109 United Arab
103 See The Apprentice, BBC One, http://www.bbc.co.uk/programmes/b0071b63 (last visited June 12, 2017).
104 Josh Marshall & Catherine Thompson, Cashing in BIGLY in Argentina!, Talking Points Memo (Nov. 21, 2016), http://talkingpointsmemo.com/edblog/cashing-in-bigly-inargentina.
105 Schmitz, supra note 83. 106 Richard C. Paddock et al., Potential Conflicts Around the Globe for Trump, the Businessman President, N.Y. Times (Nov. 26, 2016), https://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html. 107 Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016), https://www.nytimes.com/2016/12/31/world/asia/indonesia-donald-trump-resort.html. 108 Severin Carrell, Trump’s Scotland Golf Resort Proceeds with Expansion Despite Business Pledge, The Guardian (Jan. 14, 2017), https://www.theguardian.com/usnews/2017/jan/14/trump-scotland-golf-resort-conflicts-of-interest. 109 Pema Levy, Trump Admitted to a Conflict of Interest in Turkey, Mother Jones (Nov. 15, 2016), http://www.motherjones.com/politics/2016/11/donald-trump-i-have-little-conflictinterest-turkey.
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Emirates,110 and the Philippines.111 Many of these ventures are in the planning stages, and as
public reports note, “foreign developers could stand to benefit if their governments were to grease the skids for Trump-branded projects as a way to curry favor with the new American president.”112
Indeed, since the election, there have been reports of Defendant asking for, and receiving, such
help from foreign governments:
a. In November 2016, when Argentine President Mauricio Macri called Defendant
to congratulate him on his victory, Defendant reportedly asked him “to deal
with the permitting issues that are currently holding up” a project that
Defendant and Argentine partners have been working on for a number of years, namely, the development of a major office building in Buenos Aires.113
“[T]hree days after Trump spoke with Argentina’s president, . . . the long delayed project was moving ahead.”114
b. In a meeting “held shortly after the presidential election,” Defendant reportedly
“encouraged [British politician Nigel Farage] . . . to oppose the kind of offshore
110 Jon Gambrell, AP Exclusive: Golf Club Shows Pitfalls of Trump Presidency, AP (Jan. 3, 2017), http://bigstory.ap.org/article/f105158bacc94890bc952a26f8a5c819.
111 Jackie Northam, Trump Business Deals in Southeast Asia Raise Conflict of Interest Concerns, NPR (Jan. 6, 2017), http://www.npr.org/sections/parallels/2017/01/06/508411598/trump-business-deals-in-southeastasia-raise-conflict-of-interest-concerns.
112 Rosalind S. Helderman & Tom Hamburger, Trump’s Presidency, Overseas Business Deals and Relations with Foreign Governments Could All Become Intertwined, Wash. Post (Nov. 25, 2016), https://www.washingtonpost.com/politics/trumps-presidency-overseasbusiness-deals-and-relations-with-foreign-governments-could-all-becomeintertwined/2016/11/25/d2bc83f8-b0e2-11e6-861652b15787add0_story.html?utm_term=.9f2b946fffd5.
113 Marshall & Thompson, supra note 104. 114 Helderman & Hambuger, supra note 112.
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wind farms that [Defendant] believes will mar the pristine view from one of his two Scottish golf courses.”115 c. Further, “[d]ays after [Defendant]’s election victory, a news agency in the former Soviet republic of Georgia reported that a long-stalled plan for a Trumpbranded tower in a seaside Georgian resort town was now back on track.”116 62. Defendant’s acceptance of any benefits from foreign governments related to his business ventures abroad—including payments, loans, permits, exemptions, tax incentives, and favorable policy changes—would violate the Foreign Emoluments Clause unless Defendant first sought and obtained “the Consent of the Congress,” which he has not done. Consequences of Defendant’s Failure To Comply with the Constitution 63. Defendant’s refusal to seek and obtain “the Consent of the Congress” before accepting the payments and benefits discussed above suggests that Defendant may have accepted other payments and benefits from foreign states that have not yet been made public. Neither the Plaintiffs nor the public, therefore, can know the full range of Defendant’s unconstitutional acceptance of foreign emoluments. 64. By accepting such benefits without first obtaining congressional consent, Defendant is causing the harms that the Founders sought to prevent when they adopted the Foreign Emoluments Clause. The Clause was meant to ensure “the undivided loyalty of individuals occupying positions of trust under our government,”117 because, as the Founders recognized,
115 Danny Hakim & Eric Lipton, With a Meeting, Trump Renewed a British Wind Farm Fight, N.Y. Times (Nov. 21, 2016), https://www.nytimes.com/2016/11/21/business/with-ameeting-trump-renewed-a-british-wind-farm-fight.html.
116 Helderman & Hamburger, supra note 112. 117 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. at 100.
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“[t]hose who hold offices under the United States must give the government their unclouded

judgment and their uncompromised loyalty.”118 Defendant’s conduct deprives the American

people of assurance that their highest elected official is pursuing their best interests with undivided

loyalty.

65. For instance, as Defendant addresses critical trade issues with China, which could

dramatically affect the American economy and American jobs, he may be influenced by the fact

that New York’s Trump Tower will soon be renegotiating its lease with the state-owned Industrial

and Commercial Bank of China,119 or the fact that the Chinese government recently granted him

numerous trademarks enabling his companies to pursue lucrative business opportunities in that

country.120 66.

As Defendant brokers arms deals with Saudi Arabia,121 and as he decides whether

to commit U.S. resources to support Saudi military actions in Yemen, which potentially could

escalate and put American servicemembers in harm’s way, he may be influenced by his desire to

pursue hotel deals in Saudi Arabia requiring government approvals.122 Indeed, Defendant said

118 Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. at 18.
119 Melby, Baker, & Brody, supra note 98.
120 Kinetz, supra note 77.
121 Michael J. de la Merced, Saudi Arabia To Invest $20 Billion in Infrastructure, Mostly in U.S., N.Y. Times (May 20, 2017), https://www.nytimes.com/2017/05/20/business/dealbook/saudi-arabia-to-invest-20-billion-ininfrastructure-mostly-in-us.html; Mark Landler et al., $110 Billion Weapons Sale to Saudis Has Jared Kushner’s Personal Touch, N.Y. Times (May 18, 2017), https://www.nytimes.com/2017/05/18/world/middleeast/jared-kushner-saudi-arabia-arms-deallockheed.html.
122 Drew Harwell & Anu Narayanswamy, A Scramble To Assess the Dangers of President-Elect Donald Trump’s Global Business Empire, Wash. Post (Nov. 20, 2016), https://www.washingtonpost.com/business/economy/a-scramble-to-assess-the-dangers-of-
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during the presidential campaign that he “would want to protect Saudi Arabia” from Iranian
aggression and also stated: “Saudi Arabia, I get along with all of them. They buy apartments from me. They spend $40 million, $50 million. Am I supposed to dislike them?”123
67. As Defendant decides how to shape U.S. policy toward Russia, he may be
influenced by his long-standing, though yet unrealized, desire to build housing and hotels in Russia,124 which could also require government approvals or licenses. Indeed, Donald Trump Jr.,
Defendant’s son and an executive in the Trump Organization, has in the past acknowledged the
business ties between Defendant and Russia, noting in 2008 that “Russians make up a pretty
disproportionate cross-section of a lot of our assets” and that “we see a lot of money pouring in from Russia.”125
68. Finally, as Defendant weighs the United States’ response to allegations that
Philippine president Rodrigo Duterte has endorsed extrajudicial killings and other human rights
abuses, he may be influenced by the millions of dollars he is set to receive in licensing revenue
from the new Trump Tower in Manila, particularly because his business partner in that venture was appointed by President Duterte to serve as a top trade envoy to the United States.126
president-elects-global-business-empire/2016/11/20/1bbdc2a2-ad18-11e6-a31b4b6397e625d0_story.html?utm_term=.0926499e36bb.
123 Id. 124 Oren Dorell, Donald Trump’s Ties to Russia Go Back 30 Years, USA Today (Feb. 15, 2017), https://www.usatoday.com/story/news/world/2017/02/15/donald-trumps-ties-russia-goback-30-years/97949746/. 125 Rosalind S. Helderman, Here’s What We Know About Donald Trump and His Ties to Russia, Wash. Post (July 29, 2016), https://www.washingtonpost.com/politics/heres-what-weknow-about-donald-trump-and-his-ties-to-russia/2016/07/29/1268b5ec-54e7-11e6-88eb7dda4e2f2aec_story.html?utm_term=.d25e09c907e7. 126 Drew Harwell & Matea Gold, While in White House, Trumps Remained Selling Points for ‘Very Special’ Philippines Project, Wash. Post (May 2, 2017), https://www.washingtonpost.com/politics/while-in-white-house-trumps-remained-selling-points-
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69. As Defendant makes countless other foreign policy decisions, he may similarly be influenced by how those decisions will affect his business pursuits. And because Defendant is not coming to Congress and identifying the emoluments he wishes to accept, the American people will have no way of knowing whether his actions as President reflect only his beliefs about what is best for the country, or whether they are partly motivated by personal financial considerations. For instance, when Defendant publicly advocated during the presidential campaign for a ban on Muslims entering the United States, Turkish President Recep Tayyip Erdogan called for Defendant’s name to be removed from the Trump Towers Istanbul, two high-rises containing offices and luxury apartments, connected by a shopping mall. But after Defendant subsequently defended Erdogan’s suppression of political dissidents, “the calls for the renaming of the Trump Towers Mall ended.”127 Defendant himself has acknowledged that he has “a little conflict of interest” regarding Turkey because “I have a major, major building in Istanbul.”128
70. To avoid even the possibility that conflicts of interest like these would harm the American people by compromising the judgment of their leaders, the Founders laid down the strict prohibitions of the Foreign Emoluments Clause.
B. Plaintiffs’ Injuries 71. The text of the Foreign Emoluments Clause expressly assigns members of Congress a role in regulating federal officeholders’ acceptance of emoluments from foreign states. By providing that persons holding an “Office of Profit or Trust” under the United States may accept such “Emolument[s]” with, and only with, “the Consent of the Congress,” the Constitution makes
for-very-special-philippines-project/2017/05/02/09ee6164-2e99-11e7-9dec764dc781686f_story.html?utm_term=.b60fdfde5a42.
127 Paddock et al., supra note 106. 128 Harwell & Narayanswamy, supra note 122.
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clear that members of Congress must have the opportunity to cast a binding vote that gives or withholds their “Consent” before the President or any other federal officeholder accepts a foreign “Emolument.”
72. Since taking office, Defendant has accepted, or necessarily will accept, numerous emoluments from foreign states.
73. Congress has not consented to Defendant’s acceptance of any of the emoluments that he has received or will be receiving in the future.
74. Although the Foreign Emoluments Clause places on federal officeholders who wish to accept “Emolument[s]” the burden of seeking “the Consent of the Congress,” Defendant has never sought Congress’s consent for his acceptance of these foreign emoluments.
75. Similarly, Defendant has not provided Congress with any information about the foreign emoluments he has accepted or the transactions that produced them.
76. Defendant’s refusal to seek Congress’s consent and provide information about the foreign emoluments he is accepting makes it impossible for Plaintiffs to evaluate the unique circumstances of each emolument and decide, on a case-by-case basis, whether any of those specific emoluments should be approved.
77. By accepting emoluments without “the Consent of the Congress,” Defendant has violated the Foreign Emoluments Clause. In the process, Defendant has deprived Plaintiffs of their ability to vote on which emoluments he, as a federal officeholder, may accept. When legislators’ votes are “completely nullified” or “deprived of all validity,”129 they may seek judicial redress to
129 Raines v. Byrd, 521 U.S. 811, 822-23 (1997). 50

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“have their votes given effect.”130 Such nullification occurs both where a previously cast vote has
been unlawfully disregarded and where, as here, legislators are unlawfully denied an “opportunity
to cast a binding vote” in the first place.131 By refusing to seek Plaintiffs’ consent as
constitutionally required, “[t]he President’s action has deprived them of this opportunity
completely, in the sense that they have no legislative power to exercise an equivalent voting
opportunity.”132 Plaintiffs thus have “a plain, direct and adequate interest in maintaining the
effectiveness of their votes” on whether consent should be given to Defendant’s acceptance of
foreign emoluments.133
78. Without a judicial order, Plaintiffs cannot force Defendant to obey the
Constitution’s text by seeking their consent before accepting such foreign emoluments. The
declaratory and injunctive relief that Plaintiffs are seeking would redress this injury by ensuring
that Defendant accepts no “present, Emolument, Office, or Title” from any “foreign State” without
130 Coleman v. Miller, 307 U.S. 433, 438 (1939); see Kennedy v. Sampson, 511 F.2d 430, 436 (D.C. Cir. 1974) (recognizing legislator’s standing “to vindicate the effectiveness of his vote” after “an illegal nullification” by the executive branch).
131 Goldwater v. Carter, 617 F.2d 697, 702-03 (D.C. Cir. 1979) (en banc) (recognizing standing where President’s action “deprived each individual Senator of his alleged right to cast a vote” on whether to terminate a treaty), vacated on other grounds, 444 U.S. 996 (1979); see Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663, 2665 (2015) (recognizing standing where action that “strips the Legislature of its alleged prerogative to initiate redistricting” would “completely nullify any vote by the Legislature, now or in the future,” on that topic (brackets and quotation marks omitted)); Moore v. U.S. House of Representatives, 733 F.2d 946, 949 (D.C. Cir. 1984) (recognizing standing where members of the House of Representatives were allegedly denied their constitutional prerogative “to originate bills for raising revenues”); Am. Fed’n of Gov’t Emps., AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982) (recognizing standing where legislator was allegedly deprived by the executive branch of his “statutory right to participate in the legislative process”); cf. Raines, 521 U.S. at 824 (denying standing because legislators could not claim that the statute they were challenging “will nullify their votes in the future”).
132 Goldwater, 617 F.2d at 703. 133 Coleman, 307 U.S. at 438.
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Case 1:17-cv-01154 Document 1 Filed 06/14/17 Page 52 of 54
first giving them an opportunity to vote on whether to provide their consent. V.
CLAIMS COUNT I Violations of the Foreign Emoluments Clause (Declaratory Relief) 79. Plaintiffs re-allege and incorporate by reference each and every foregoing paragraph of this Complaint as if set forth here in full. 80. 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. Specifically, Plaintiffs allege that Defendant, by virtue of his continuing ownership of vast business interests around the world, has been, or necessarily soon will be, accepting emoluments from foreign states. Because Defendant has not sought and received the consent of Congress, he is in violation of the Foreign Emoluments Clause. Defendant, through his personal attorney, has indicated that he disagrees with these allegations, believing instead that “[t]he Constitution does not require [Defendant] to do anything here.”134 81. Plaintiffs are entitled to declaratory relief under 28 U.S.C. § 2201. A declaration resolving the actual controversy between Plaintiffs and Defendant will aid in the resolution of legal issues in this action. Without this relief, Plaintiffs will continue to suffer injury. COUNT II Violations of the Foreign Emoluments Clause (Injunctive Relief) 82. Plaintiffs re-allege and incorporate by reference each and every foregoing paragraph of this Complaint as if set forth here in full.
134 Donald Trump’s News Conference: Full Transcript and Video, supra note 72. 52

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83. Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause.
84. The Foreign Emoluments Clause prohibits “Person[s] holding any Office of Profit or Trust” under the United States from accepting “present[s]” or “Emolument[s] . . . of any kind whatever”—that is, anything of value and any benefits, monetary or nonmonetary—from “any King, Prince, or foreign State,” without “the Consent of the Congress.”
85. As described more fully in paragraphs 34-62 herein, Defendant has committed and, absent this Court’s intervention, will continue to commit violations of the Foreign Emoluments Clause because he has accepted, or necessarily will accept, emoluments from foreign states without obtaining the consent of Congress.
86. By accepting emoluments from foreign states without obtaining the consent of Congress, Defendant has denied each Plaintiff the opportunity to cast binding votes on whether to provide his or her consent to Defendant’s acceptance of these individual emoluments.
87. Plaintiffs are entitled to injunctive relief to stop the above-mentioned injury, and this Court has the power to grant such relief pursuant to its inherent ability to grant equitable relief and pursuant to 28 U.S.C. § 1331. Such relief would order Defendant not to accept “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of the Congress,” thus ensuring that individual members of Congress have the opportunity to vote on a case-by-case basis whether to give their consent, as the Constitution requires.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in Plaintiffs’ favor and against Defendant, consisting of: (a) A declaratory judgment stating that:
53

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(1) Defendant is a “Person holding any Office of Profit or Trust” within the meaning of the Foreign Emoluments Clause;
(2) the Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting any benefits of value, monetary or nonmonetary, from “any King, Prince, or foreign State”;
(3) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; and
(4) by accepting emoluments from foreign states without first seeking and obtaining “the Consent of the Congress,” Defendant is violating the Foreign Emoluments Clause; (b) Injunctive relief, enjoining Defendant from accepting emoluments from foreign states without first obtaining the consent of Congress; and (c) Such other and further relief as this Court may deem just and proper. Dated: June 14, 2017
CONSTITUTIONAL ACCOUNTABILITY CENTER By: /s/ Brianne J. Gorod
Brianne J. Gorod Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Brian R. Frazelle (DC Bar No. 1014116) CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, N.W. Suite 501 Washington, D.C. 20036 (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org
54

 
 Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 1 of 57

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Senator RICHARD BLUMENTHAL 706 Hart Senate Office Building Washington, D.C. 20510,
Representative JOHN CONYERS, JR. 2426 Rayburn House Office Building Washington, D.C. 20515,
Senator RICHARD J. DURBIN 711 Hart Senate Office Building Washington, D.C. 20510,
Senator PATTY MURRAY 154 Russell Senate Office Building Washington, D.C. 20510,
Senator ELIZABETH WARREN 317 Hart Senate Office Building Washington, D.C. 20510,
Senator AMY KLOBUCHAR 302 Hart Senate Office Building Washington, D.C. 20510,
Senator BERNARD SANDERS 332 Dirksen Senate Office Building Washington, D.C. 20510,
Senator PATRICK LEAHY 437 Russell Senate Office Building Washington, D.C. 20510,
Senator SHELDON WHITEHOUSE 530 Hart Senate Office Building Washington, D.C. 20510,
Senator AL FRANKEN 309 Hart Senate Office Building Washington, D.C. 20510,
Senator CHRISTOPHER A. COONS 127A Russell Senate Office Building Washington, D.C. 20510,

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Civil Action No. 17-1154 (EGS)

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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 2 of 57

Senator MAZIE K. HIRONO

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730 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator MICHAEL F. BENNET

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261 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator CORY A. BOOKER

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141 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator MARIA CANTWELL

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511 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator BENJAMIN L. CARDIN

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509 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TOM CARPER

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513 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CATHERINE CORTEZ MASTO

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204 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator TAMMY DUCKWORTH

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542 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator KIRSTEN E. GILLIBRAND

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478 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator KAMALA D. HARRIS

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112 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator MARTIN HEINRICH

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303 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TIM KAINE

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231 Russell Senate Office Building

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Washington, D.C. 20510,

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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 3 of 57

Senator EDWARD J. MARKEY

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255 Dirksen Senate Office Building

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Washington, D.C. 20510,

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Senator JEFF MERKLEY

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313 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CHRIS MURPHY

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136 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator JACK REED

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728 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator BRIAN SCHATZ

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722 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TOM UDALL

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531 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CHRIS VAN HOLLEN

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110 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator RON WYDEN

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221 Dirksen Senate Office Building

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Washington, D.C. 20510,

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Representative NANCY PELOSI

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235 Cannon House Office Building

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Washington, D.C. 20515,

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Representative STENY H. HOYER

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1705 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JAMES E. CLYBURN

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242 Cannon House Office Building

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Washington, D.C. 20515,

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Representative JOSEPH CROWLEY

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1035 Longworth House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 4 of 57

Representative LINDA T. SÁNCHEZ

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2329 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JERROLD NADLER

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2109 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ZOE LOFGREN

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1401 Longworth House Office Building

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Washington, D.C. 20515,

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Representative SHEILA JACKSON LEE

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2187 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative STEVE COHEN

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2404 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative HENRY C. “HANK”

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JOHNSON JR.

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2240 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative TED DEUTCH

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2447 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative LUIS V. GUTIÉRREZ

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2408 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative KAREN BASS

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2241 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative CEDRIC L. RICHMOND

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420 Cannon House Office Building

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Washington, D.C. 20515,

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Representative HAKEEM JEFFRIES

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1607 Longworth House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 5 of 57

Representative DAVID N. CICILLINE

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2244 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ERIC SWALWELL

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129 Cannon House Office Building

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Washington, D.C. 20515,

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Representative TED W. LIEU

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236 Cannon House Office Building

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Washington, D.C. 20515,

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Representative JAMIE RASKIN

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431 Cannon House Office Building

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Washington, D.C. 20515,

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Representative PRAMILA JAYAPAL

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319 Cannon House Office Building

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Washington, D.C. 20515,

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Representative BRADLEY S. SCHNEIDER )

1432 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ALMA ADAMS

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222 Cannon House Office Building

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Washington, D.C. 20515,

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Representative PETE AGUILAR

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1223 Longworth House Office Building

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Washington, D.C. 20515,

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Representative NANETTE DIAZ

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BARRAGÁN

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1320 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JOYCE BEATTY

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133 Cannon House Office Building

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Washington, D.C. 20515,

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Representative AMI BERA

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1431 Longworth House Office Building

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Washington, D.C. 20515,

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Representative DONALD S. BEYER, JR.

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1119 Longworth House Office Building

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Washington, D.C. 20515,

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Representative EARL BLUMENAUER

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1111 Longworth House Office Building

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Washington, D.C. 20515,

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Representative LISA BLUNT ROCHESTER )

1123 Longworth House Office Building

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Washington, D.C. 20515,

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Representative SUZANNE BONAMICI

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439 Cannon House Office Building

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Washington, D.C. 20515,

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Representative BRENDAN F. BOYLE

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1133 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ROBERT A. BRADY

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2004 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ANTHONY BROWN

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1505 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JULIA BROWNLEY

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1019 Longworth House Office Building

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Washington, D.C. 20515,

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Representative G.K. BUTTERFIELD

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2080 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative MICHAEL E. CAPUANO

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1414 Longworth House Office Building

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Washington, D.C. 20515,

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Representative SALUD O. CARBAJAL

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212 Cannon House Office Building

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Washington, D.C. 20515,

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Representative TONY CÁRDENAS

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1510 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ANDRÉ CARSON

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2135 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative KATHY CASTOR

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2052 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JOAQUIN CASTRO

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1221 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JUDY CHU

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2423 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative KATHERINE CLARK

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1415 Longworth House Office Building

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Washington, D.C. 20515,

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Representative YVETTE D. CLARKE

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2058 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative WILLIAM LACY CLAY

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2428 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative EMANUEL CLEAVER, II

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2335 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative GERALD E. CONNOLLY

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2238 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JIM COOPER

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1536 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JOE COURTNEY

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2348 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative CHARLIE CRIST

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427 Cannon House Office Building

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Washington, D.C. 20515,

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Representative ELIJAH E. CUMMINGS

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2163 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DANNY K. DAVIS

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2159 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative SUSAN A. DAVIS

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1214 Longworth House Office Building

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Washington, D.C. 20515,

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Representative PETER DEFAZIO

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2134 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DIANA DEGETTE

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2111 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JOHN K. DELANEY

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1632 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ROSA L. DELAURO

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2413 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative SUZAN K. DELBENE

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2442 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative VAL BUTLER DEMINGS

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238 Cannon House Office Building

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Washington, D.C. 20515,

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Representative MARK DESAULNIER

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115 Cannon House Office Building

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Washington, D.C. 20515,

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Representative DEBBIE DINGELL

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116 Cannon House Office Building

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Washington, D.C. 20515,

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Representative LLOYD DOGGETT

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2307 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative MICHAEL F. DOYLE

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239 Cannon House Office Building

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Washington, D.C. 20515,

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Representative KEITH ELLISON

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2263 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ELIOT L. ENGEL

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2462 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ANNA G. ESHOO

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241 Cannon House Office Building

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Washington, D.C. 20515,

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Representative ADRIANO ESPAILLAT

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1630 Longworth House Office Building

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Washington, D.C. 20515,

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Representative DWIGHT EVANS

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1105 Longworth House Office Building

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Washington, D.C. 20515,

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Representative BILL FOSTER

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1224 Longworth House Office Building

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Washington, D.C. 20515,

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Representative LOIS FRANKEL

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1037 Longworth House Office Building

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Washington, D.C. 20515,

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Representative MARCIA L. FUDGE

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2344 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative TULSI GABBARD

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1433 Longworth House Office Building

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Washington, D.C. 20515,

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Representative RUBEN GALLEGO

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1218 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JOHN GARAMENDI

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2438 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JIMMY GOMEZ

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1226 Longworth House Office Building

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Washington, D.C. 20515,

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Representative AL GREEN

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2347 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative GENE GREEN

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2470 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative RAUL M. GRIJALVA

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1511 Longworth House Office Building

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Washington, D.C. 20515,

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Representative COLLEEN HANABUSA

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422 Cannon House Office Building

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Washington, D.C. 20515,

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Representative ALCEE L. HASTINGS

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2353 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DENNY HECK

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425 Cannon House Office Building

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Washington, D.C. 20515,

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Representative BRIAN HIGGINS

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2459 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JAMES A. HIMES

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1227 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JARED HUFFMAN

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1406 Longworth House Office Building

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Washington, D.C. 20515,

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Representative EDDIE BERNICE JOHNSON

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2468 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative MARCY KAPTUR

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2186 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative WILLIAM R. KEATING

)

2351 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ROBIN L. KELLY

)

1239 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JOSEPH P. KENNEDY III

)

434 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative RO KHANNA

)

513 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative RUBEN J. KIHUEN

)

313 Cannon House Office Building

) )

Washington, D.C. 20515,

)

Representative DANIEL T. KILDEE

)

227 Cannon House Office Building

)

Washington, D.C. 20515,

) )

Representative DEREK KILMER

)

1520 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative RAJA KRISHNAMOORTHI )

515 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative JAMES R. LANGEVIN

)

2077 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative RICK LARSEN

)

2113 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative JOHN B. LARSON

) )

1501 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative BRENDA L. LAWRENCE

)

1213 Longworth House Office Building

) )

Washington, D.C. 20515,

)

11

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 12 of 57

Representative AL LAWSON

)

1337 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative BARBARA LEE

)

2267 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative SANDER M. LEVIN

)

1236 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JOHN LEWIS

)

343 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative DAVE LOEBSACK

)

1527 Longworth House Office Building

) )

Washington, D.C. 20515,

)

Representative ALAN LOWENTHAL

)

125 Cannon House Office Building

)

Washington, D.C. 20515,

) )

Representative NITA M. LOWEY

)

2365 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative BEN RAY LUJÁN

)

2231 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MICHELLE LUJAN

)

GRISHAM

)

214 Cannon House Office Building

)

Washington, D.C. 20515,

)

) Representative CAROLYN B. MALONEY )

2308 Rayburn House Office Building

)

Washington, D.C. 20515,

)

) Representative SEAN PATRICK MALONEY )

1027 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

)

)

12

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 13 of 57

Representative DORIS MATSUI

)

2311 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative BETTY MCCOLLUM

)

2256 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative A. DONALD MCEACHIN

)

314 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative JAMES P. MCGOVERN

)

438 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative ANN MCLANE KUSTER

)

137 Cannon House Office Building

) )

Washington, D.C. 20515,

)

Representative JERRY MCNERNEY

)

2265 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative GREGORY W. MEEKS

)

2234 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative GRACE MENG

)

1317 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative GWEN S. MOORE

)

2252 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative SETH MOULTON

)

1408 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative GRACE F. NAPOLITANO

) )

1610 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative RICHARD E. NEAL

)

341 Cannon House Office Building

) )

Washington, D.C. 20515,

)

13

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 14 of 57

Representative RICHARD M. NOLAN

)

2366 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative DONALD NORCROSS

)

1531 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative FRANK PALLONE, JR.

)

237 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative JIMMY PANETTA

)

228 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative BILL PASCRELL, JR.

)

2370 Rayburn House Office Building

) )

Washington, D.C. 20515,

)

Representative DONALD M. PAYNE, JR.

)

132 Cannon House Office Building

)

Washington, D.C. 20515,

) )

Representative ED PERLMUTTER

)

1410 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative SCOTT H. PETERS

)

1122 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative CHELLIE PINGREE

)

2162 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MARK POCAN

)

1421 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JARED POLIS

) )

1727 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative DAVID E. PRICE

)

2108 Rayburn House Office Building

) )

Washington, D.C. 20515,

)

14

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 15 of 57

Representative MIKE QUIGLEY

)

2458 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative KATHLEEN M. RICE

)

1508 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative LUCILLE ROYBAL-

)

ALLARD

)

2083 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative C. A. DUTCH

)

RUPPERSBERGER

)

2416 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative BOBBY L. RUSH

)

2188 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative TIM RYAN

) )

1126 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JOHN P. SARBANES

)

2444 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative JAN SCHAKOWSKY

)

2367 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ADAM B. SCHIFF

)

2372 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ROBERT C. “BOBBY”

)

SCOTT

)

1201 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JOSÉ E. SERRANO

)

2354 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

15

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 16 of 57

Representative TERRI SEWELL

)

2201 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative CAROL SHEA-PORTER

)

1530 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative BRAD SHERMAN

)

2181 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ALBIO SIRES

)

2342 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative LOUISE M. SLAUGHTER

)

2469 Rayburn House Office Building

) )

Washington, D.C. 20515,

)

Representative ADAM SMITH

)

2264 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative DARREN SOTO

)

1429 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JACKIE SPEIER

)

2465 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MARK TAKANO

)

1507 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative BENNIE G. THOMPSON

)

2466 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative MIKE THOMPSON

)

231 Cannon House Office Building

) )

Washington, D.C. 20515,

)

Representative DINA TITUS

)

2464 Rayburn House Office Building

)

Washington, D.C. 20515,

)

16

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 17 of 57

Representative PAUL D. TONKO

)

2463 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative NORMA J. TORRES

)

1710 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative NIKI TSONGAS

)

1714 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JUAN VARGAS

) )

1605 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative MARC VEASEY

)

1519 Longworth House Office Building

)

Washington, D.C. 20515,

) )

Representative FILEMON VELA

)

437 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative NYDIA M. VELÁZQUEZ

)

2302 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative TIMOTHY J. WALZ

)

2313 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative DEBBIE WASSERMAN

)

SCHULTZ

)

1114 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative MAXINE WATERS

)

2221 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative BONNIE WATSON

)

COLEMAN

)

1535 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

)

17

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 18 of 57

Representative PETER WELCH

)

2303 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative FREDERICA S. WILSON

)

2445 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative JOHN YARMUTH

)

131 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Plaintiffs,

)

v.

)

)

DONALD J. TRUMP, in his official capacity )

as President of the United States of America )

1600 Pennsylvania Avenue, N.W.

)

Washington, D.C. 20500,

)

Defendant.

)

_____________________________________ )

FIRST AMENDED COMPLAINT Senator Richard Blumenthal and Representative John Conyers, Jr., along with 199 other members of Congress, for their complaint against Donald J. Trump, in his official capacity as President of the United States of America, allege as follows:
I. INTRODUCTION 1. Plaintiffs, 30 members of the United States Senate and 171 members of the United States House of Representatives, bring this action against President Donald J. Trump to obtain relief from the President’s continuing violation of the Foreign Emoluments Clause of the United States Constitution, which was designed to ensure that our nation’s leaders would not be corrupted by foreign influence or put their own financial interests over the national interest. To achieve those aims, the Clause provides that “no Person holding any Office of Profit or Trust under [the United
18

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 19 of 57
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.”1 Through this measure, the nation’s Founders invested members of Congress with an important role in preventing the corruption and foreign influence that the Founders sought to avoid—permitting federal officeholders to accept otherwise prohibited “Emolument[s]” only if they first received “the Consent of the Congress.”
2. Defendant, President Donald J. Trump, has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments. By virtue of that financial interest, Defendant has accepted, or necessarily will accept, “Emolument[s]” from “foreign State[s]” while holding the office of President of the United States.
3. Because the Foreign Emoluments Clause requires the President to obtain “the Consent of the Congress” before accepting otherwise prohibited “Emolument[s],” Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds their “Consent” before the President accepts any such “Emolument.”
4. Despite this constitutional mandate, Defendant has chosen to accept numerous benefits from foreign states without first seeking or obtaining congressional approval. Indeed, he has taken the position that the Foreign Emoluments Clause does not require him to obtain such approval before accepting benefits arising out of exchanges between foreign states and his businesses. Because Defendant has failed to come to Congress and seek its consent for at least some foreign emoluments that have been the subject of public reporting, it is impossible to know whether Defendant has also accepted, or plans to accept, other foreign emoluments that have not
1 U.S. Const. art. I, § 9, cl. 8. 19

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 20 of 57
yet been made public. By accepting these benefits from foreign states without first seeking or obtaining congressional approval, Defendant has thwarted the transparency that the “Consent of the Congress” provision was designed to provide.
5. Moreover, by accepting these benefits from foreign states without first seeking or obtaining congressional approval, Defendant has also denied Plaintiffs the opportunity to give or withhold their “Consent” to his acceptance of individual emoluments and has injured them in their roles as members of Congress.
6. To redress that injury, Plaintiffs seek declaratory relief establishing that Defendant violates the Constitution when he accepts any monetary or nonmonetary benefit—any “present, Emolument, Office, or Title, of any kind whatever”—from a foreign state without first obtaining “the Consent of the Congress.” Plaintiffs also seek injunctive relief ordering Defendant not to accept any such benefits from a foreign state without first obtaining “the Consent of the Congress.”
II. PARTIES, JURISDICTION, AND VENUE 7. Richard Blumenthal is a United States Senator who represents the state of Connecticut. Senator Blumenthal is the Ranking Member of the Constitution Subcommittee of the Senate Judiciary Committee. 8. John Conyers, Jr. is a United States Representative who represents Michigan’s 13th congressional district. Representative Conyers is the Ranking Member of the House Judiciary Committee. 9. Additional plaintiffs are the 29 members of the United States Senate and 170 members of the United States House of Representatives whose names appear in the caption of this Complaint. 10. As members of Congress, Plaintiffs have been entrusted by the Constitution with
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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 21 of 57
the important role of determining when the President and other individuals who hold an “Office of Profit or Trust” under the United States may accept “Emolument[s]” from “foreign States.” By empowering members of Congress with this important gatekeeping role, the Founders provided a mechanism by which federal officeholders could accept benefits from foreign governments in appropriate circumstances while still maintaining a structural safeguard against corruption and foreign influence.
11. Defendant Donald J. Trump is the President of the United States of America and thus holds an “Office of Profit or Trust” under the United States. He is being sued in his official capacity as President of the United States.
12. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 2201. 13. Venue is proper in this Court 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 District of Columbia is a “judicial district” in which the “defendant in the action resides,” in which “a substantial part of the events or omissions giving rise to the claim occurred,” and in which “a substantial part of property that is the subject of the action is situated.” For example, Trump International Hotel Washington, D.C., which is central to some of Plaintiffs’ allegations, is located in this district.
III. BACKGROUND 14. Article I, Section 9, Clause 8 of the U.S. Constitution provides: “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.” Commonly known as the “Foreign Emoluments Clause,” this provision reflects the Founders’ deep concern that corruption
21

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 22 of 57
and foreign influence could undermine the new republic and harm the American people. 15. Because the Founders believed that corruption was one of the gravest threats to the
new nation, they viewed anti-corruption measures as essential to preserving an enduring republican system of government. As George Mason warned his fellow delegates at the Constitutional Convention, “if we do not provide against corruption, our government will soon be at an end.”2 Thus, in drafting the Constitution, the Founders sought to ensure that “corruption was more effectually guarded against, in the manner this government was constituted, than in any other that had ever been formed.”3 Alexander Hamilton explained that “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”4
16. This preoccupation with stemming corruption, born of the Founders’ experience under British rule, pervaded the debates at the Constitutional Convention. According to James Madison’s notes of the Convention, fifteen delegates used the word “corruption” no fewer than fifty-four times,5 and corruption was a topic of discussion on almost a quarter of the days that the Convention was in session.6 The Founders wanted to ensure that in the United States, unlike in Britain, the nation’s leaders would be dependent on the people alone—not on those who would give them financial benefits—and would be motivated solely by the national interest, not their own personal interests. To promote that goal, the Founders included in the nation’s new charter a
2 1 The Records of the Federal Convention of 1787, at 392 (Max Farrand ed., 1911) [hereinafter “Convention Records”].
3 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 302 (Jonathan Elliot ed., 1836) [hereinafter “Elliot’s Debates”] (Charles Cotesworth Pinckney).
4 The Federalist No. 68, at 411 (Clinton Rossiter ed., Signet Classics 2003). 5 James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. Pol. 174, 181 (1994). 6 Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 352 (2009).
22

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 23 of 57
number of safeguards against corruption. These safeguards took the form of “procedural devices and organizational arrangements” meant to ward off “dependency, cabals, patronage, unwarranted influence, and bribery.”7
17. The Founders were also deeply worried that foreign powers would interfere with America’s internal affairs, undermining the nation’s republican institutions and making its leaders subservient to foreign interests. Alexander Hamilton wrote that one of the vulnerabilities of republics “is that they afford too easy an inlet to foreign corruption.”8 During the Constitutional Convention, Elbridge Gerry warned that “[f]oreign powers will intermeddle in our affairs, and spare no expence to influence them,”9 while Gouverneur Morris invoked “the melancholy picture of foreign intrusions as exhibited in the History of Germany,” and “urged it as a standing lesson to other nations.”10
18. Of particular concern to the Founders was the risk that foreign states would give benefits and rewards to the nation’s chief executive to subvert his loyalty. As Hamilton noted, the personal interest of a hereditary monarch was “so interwoven with that of the Nation . . . that he was placed above the danger of being corrupted from abroad.”11 By contrast, as Madison observed, an elected President would lack “that permanent stake in the public interest which would place him out of the reach of foreign corruption.”12 During the state debates over ratification of the
7 Savage, supra note 5, at 181; see id. at 177-82 (describing how fear of corruption influenced the structure of the electoral college, Congress’s power to impeach, the prohibition on members of Congress holding other offices, and the prohibition on acceptance of foreign emoluments).
8 The Federalist No. 22, at 145 (Clinton Rossiter ed., Signet Classics 2003). 9 2 Convention Records 268 (Gerry). 10 1 Convention Records 530 (Morris). 11 Id. at 289 (Hamilton). 12 Id. at 138 (Madison).
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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 24 of 57
Constitution, former delegate Charles Cotesworth Pinckney similarly explained that while “kings are less liable to foreign bribery and corruption . . . because no bribe that could be given them could compensate the loss they must necessarily sustain for injuring their dominions . . . . the situation of a President would be very different.” As a temporary officeholder, the President “might receive a bribe which would enable him to live in greater splendor in another country than his own; and when out of office, he was no more interested in the prosperity of his country than any other patriotic citizen.”13 This threat prompted the Founders to reject entrusting the treaty power solely to the President—susceptible as he was to foreign influence—and instead to require Senate approval, among other precautions.14
19. As the Founders saw it, the dangers of corruption and foreign influence were joined together in the contemporary European practice of diplomatic gift-giving. Eighteenth-century ambassadors and ministers were typically bestowed lavish presents by the monarchs with whom they dealt, often consisting of “jewels, plate, tapestry, or porcelain, or sometimes of money.”15 The “usual presents from the European Courts” varied by country, and “in Holland, it was customary to give a gold chain and medal; in France, a gold snuff-box; and in Spain, a picture.”16 America’s Founders, however, made a clean break from such customs as soon as they established their own national government under the Articles of Confederation, prohibiting “any person holding any office of profit or trust under the United States, or any of them” from “accept[ing] any
13 4 Elliot’s Debates 264 (Charles Cotesworth Pinckney). 14 See id. at 264-65. 15 4 John Bassett Moore, A Digest of International Law 578 (1906) (quoting Letter from William Temple Franklin to Thomas Jefferson (Apr. 27, 1790)). 16 5 Annals of Cong. 1589 (1798) (Joseph Gales ed., 1834) (Bayard).
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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 25 of 57
present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.”17 Emphatically rejecting the custom of foreign gift acceptance, the Founders sought to cultivate undivided loyalty on the part of American officeholders. Absolute in its language, there was, in practice, only one exception to the ban: an officeholder could accept a foreign benefit if it was presented to Congress and if Congress approved of its receipt.18
20. This restriction on accepting foreign emoluments was one of the few measures to be transferred from the Articles of Confederation to the new Constitution in 1787, reflecting its importance to the Founding generation. At Philadelphia, the Foreign Emoluments Clause was added to the draft of the new Constitution by unanimous agreement of the state delegations after Charles Pinckney “urged the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.”19 In adding that Clause, the Founders largely borrowed the language of the precursor provision in the Articles of Confederation, but they made one important change: they “institutionalized the practice” that federal officeholders could accept otherwise prohibited emoluments from foreign states if they first obtained the consent of Congress.20
21. During ratification, Edmund Jennings Randolph emphasized the twin evils that the Clause was meant to avert, explaining that “[i]t was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments
17 Articles of Confederation of 1781, art. VI, para. 1. 18 See Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 16 n.4 (1994) (citing instances under the Articles in which Congress consented to American officials’ acceptance of gifts from foreign monarchs); 5 Annals of Cong. 1585 (1798) (Otis) (citing officials who were offered gifts from foreign governments and presented those gifts to Congress for approval). 19 2 Convention Records 389; see id. at 384. 20 See Emoluments Clause, The Heritage Guide to the Constitution, http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause (last visited June 12, 2017).
25

Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 26 of 57
from foreign states.”21 A prominent contemporary pamphleteer urging ratification stressed the
value of the Clause in similar terms: “The influence which foreign powers may attempt to exercise in our affairs was foreseen, and a wholesome provision has been made against it.”22 In sum, the Clause was “founded in a just jealousy of foreign influence of every sort.”23
22. Because the Founders wanted to eliminate “foreign influence of every sort,” they drafted the Clause with language “both sweeping and unqualified,”24 “prohibit[ing] those holding
offices of profit or trust under the United States from accepting ‘any present, Emolument, Office, or Title, of any kind whatever’ from ‘any . . . foreign State’ unless Congress consents.”25
Consistent with that broad language, the Clause has been understood to be “‘directed against every
kind of influence by foreign governments upon officers of the United States,’ in the absence of consent by Congress.”26
23. Notably, the word “emolument” was defined broadly in the eighteenth century to mean “profit,” “advantage,” “benefit,” and “comfort.”27 Contemporary writers used the term to
21 3 Convention Records 327. 22 Tench Coxe, An Examination of the Constitution for the United States of America, No. 4 (Oct. 21, 1787), in The Federalist and Other Contemporary Papers on the Constitution of the United States 769 (E.H. Scott ed., 1894). 23 Joseph Story, Commentaries on the Constitution of the United States § 1352 (5th ed. 1891). 24 Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. at 17. 25 Id. (quoting U.S. Const., art. I, § 9, cl. 8 (emphasis added by Office of Legal Counsel)). 26 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98 (1986) (quoting 24 Op. Att’y Gen. 116, 117 (1902)). 27 Oxford English Dictionary (2d ed. 1989) (citing eighteenth-century texts for definition of “emolument” meaning “Advantage, benefit, comfort”); Samuel Johnson, A Dictionary of the English Language (1755) (defining “emolument” as “Profit; advantage”); see, e.g., Jonathan Swift, The Tale of a Tub 91 (Henry Morley ed., 1889) (1704) (“And so I proceed with great
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Case 1:17-cv-01154-EGS Document 14 Filed 08/15/17 Page 27 of 57
refer, among other things, to profits accruing from private commerce.28 Founding-era statesmen
including George Washington and James Madison likewise used the term when referring to “the
consequences of ordinary business dealings.”29 And Governor Randolph’s comments at the
Virginia Ratifying Convention, specifically addressing the Foreign Emoluments Clause, reflected
this broad definition as well.30
24. Thus, it has long been understood by Congress and the executive branch that the
Foreign Emoluments Clause applies to the acceptance of any benefits or advantages from foreign
states—including compensation for services rendered in a private capacity. Benefits and
advantages that have been viewed as falling within the scope of the Clause include the following:
a. A NASA employee’s receipt of a $150 consulting fee for reviewing a Ph.D.
thesis.31
content of mind upon reflecting how much emolument this whole globe of earth is like to reap by my labours.”).
28 See, e.g., Samuel Johnson, Taxation No Tyranny: An Answer to the Resolutions and Address of the American Congress 9 (1775) (“A merchant’s desire is not of glory, but of gain; not of publick wealth, but of private emolument; he is, therefore, rarely to be consulted about war and peace, or any designs of wide extent and distant consequence.”).
29 John Mikhail, A Note on the Original Meaning of “Emolument,” Balkinization (Jan. 18, 2017), https://balkin.blogspot.com/2017/01/a-note-on-original-meaning-of-emolument.html (citing examples); see John Mikhail, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523–1806 (July 13, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995693 (concluding that “‘emolument’ was not a term of art at the founding with a highly restricted meaning” but rather was used in a “broad variety of contexts, including private commercial transactions”).
30 Randolph observed in his comments that “[a]ll men have a natural inherent right of receiving emoluments from any one, unless they be restrained by the regulations of the community.” 3 Convention Records 327.
31 Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Memorandum for H. Gerald Staub, Office of Chief Counsel, NASA, Re: Emoluments Clause Questions raised by NASA Scientist’s Proposed Consulting Arrangement with the University of New South Wales 2-3 (May 23, 1986).
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b. Payments to a Nuclear Regulatory Commission employee by an American consulting firm for work regarding the construction of a Mexican government power plant.32
c. Payments to a part-time Nuclear Regulatory Commission staff consultant by an American corporation for work on a contract with the government of Taiwan.33
d. Payments to members of the Administrative Conference of the United States, by those members’ law firms, of “a share of partnership earnings, where some portion of that share is derived from the partnership’s representation of a foreign government.”34
e. A retired U.S. Air Force member’s employment “as a teacher in a local borough high school in the United Kingdom.”35
f. A courthouse employee’s “receipt of pension payments from the British Government.”36
g. A Post Office clerk’s acceptance of an honorary military insignia from the German government.37
32 Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 156 (1982).
33 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. at 96.
34 Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 120 (1993).
35 Comptroller General, Matter of: Major James D. Dunn & Senior Master Sergeant Marcus A. Jenkins, B-251084 (Oct. 12, 1993).
36 Comptroller General, Officers and Employees—Acceptance of Foreign Presents, Emoluments, Etc.—Court Employees, B-132808 (Aug. 26, 1957).
37 Delivery of an Insignia from the German Emperor to a Clerk in the Post-Office Dep’t, 27 Op. Att’y Gen. 219, 220 (1909).
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h. A gift of photographs to U.S. military and civilian officers by a foreign prince as “a simple remembrance of courtesy.”38
i. A Navy surgeon’s receipt of a “token of thankfulness” from a foreign government for his services on behalf of one of its citizens.39
25. As these examples illustrate, the Clause has long been understood to apply to any rewards or benefits given by foreign states—whether tangible or honorary, monetary or nonmonetary, of great value or slight. This interpretation prevents officeholders from accepting anything from a foreign state that might weaken their independence or cause them to act against the national interest—a danger the Founders perceived even in the “trifling presents”40 of ornament and jewelry that were customary of European diplomacy and that motivated the adoption of the Clause.41
26. By entrusting Congress with responsibility for deciding which specific benefits could be received from foreign states, the Founders ensured that federal officeholders would not decide for themselves whether particular emoluments were likely to compromise their own independence or lead them to put personal interest over national interest. An officeholder, in short, would not be the sole judge of his own integrity. The important separation-of-powers principle embodied in Congress’s gatekeeping role also ensured that any acceptance of foreign “Emolument[s]” would be transparent and subject to public examination, further minimizing the
38 Gifts from Foreign Prince—Officer—Constitutional Prohibition, 24 Op. Att’y Gen. 116, 118 (1902).
39 A Resolution allowing Doctor E.K. Kane, and the Officers associated with him in their late Expedition to the Arctic seas, in search of Sir John Franklin, to accept such Token of Acknowledgment from the Government of Great Britain as it may please to present, Aug. 30, 1856, 11 Stat. 152.
40 5 Annals of Cong. 1587 (1798) (Bayard). 41 See supra, ¶¶ 19-20.
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dangers of corruption and influence that such transfers of wealth or benefit might otherwise pose. 27. When Congress was first called upon to exercise this responsibility in 1798,42
lawmakers reaffirmed the views expressed a decade earlier during the Constitution’s ratification about the dangers of foreign manipulation and the importance of the Foreign Emoluments Clause in guarding against it. Representative William C.C. Claiborne described the Clause as “intended to lock up every door to foreign influence, to the influence of Courts and Monarchies, which could not but prove baneful to every free country.”43 Representative James Bayard noted that “[i]f presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors.”44 Representative Matthew Lyon expressed a refusal to consent to the acceptance of any foreign emoluments, as “he should not be willing to lay this country under an obligation to a foreign country by our Ministers accepting presents.”45
28. At the same time, lawmakers stressed that the dangers of foreign influence and divided loyalty were reduced when officeholders obeyed the Constitution’s mandate by seeking the consent of Congress before accepting any foreign benefit. As Representative Bayard explained, the Clause required officeholders “to make known to the world whatever presents they might receive from foreign Courts and to place themselves in such a situation as to make it
42 Former envoy Thomas Pinckney was offered “the customary presents” by the kings of England and Spain, but “declined receiving them, saying, that he would lay the matter before Congress.” 5 Annals of Cong. 1590 (1798) (Rutledge). The Senate authorized acceptance of the presents, but the House withheld its consent, see id. at 1570-93, subsequently passing a resolution to clarify that the Congressmen “were induced to such refusal solely by motives of general policy, and not by any view personal to the said Thomas Pinckney,” id. at 1775.
43 5 Annals of Cong. 1584 (1798) (Claiborne); see id. at 1587. 44 Id. at 1583 (Bayard). 45 Id. at 1589 (Lyon).
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impossible for them to be unduly influenced by any such presents.”46 Representative Harrison Gray Otis likewise noted: “When every present to be received must be laid before Congress, no fear need be apprehended from the effects of any such presents. For, it must be presumed, that the gentleman who makes the application has done his duty, as he, at the moment he makes the application, comes before his country to be judged.”47
29. In short, as Secretary of State Madison explained in 1803, “the Constitution of the United States has left with Congress the exclusive authority to permit the acceptance of presents from foreign governments by persons holding offices under the United States.”48 In order “to exclude corruption and foreign influence,”49 an officeholder must “make known to the world”50 any benefit he wishes to accept from a foreign state and “come before his country to be judged”51 by seeking “the Consent of the Congress.”52
30. By extending the reach of these important rules to everyone who holds “any Office of Profit or Trust” under the United States, the Founders ensured that the Foreign Emoluments Clause would apply to all federal officeholders and thus guard against corruption in the highest reaches of the new nation’s government.53 Such officeholders naturally included the President of
46 Id. at 1583 (Bayard). 47 Id. at 1585 (Otis). 48 Letter from James Madison to David Humphreys (Jan. 5, 1803), in 4 Moore, supra note 15, at 579. 49 3 Convention Records 327 (Randolph). 50 5 Annals of Cong. 1583 (1798) (Bayard). 51 Id. at 1585 (Otis). 52 U.S. Const. art. I, § 9, cl. 8. 53 Emoluments Clause, The Heritage Guide to the Constitution, supra note 20 (“the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government”).
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the United States. As Randolph explained at the Virginia Ratifying Convention, “[t]here is another provision against the danger . . . 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.”54 And as noted, the Founders were especially afraid that foreign nations would use favors to subvert the loyalty of the President.55
31. Historically, presidents have respected their obligations under the Foreign Emoluments Clause and have declined to accept presents or emoluments from foreign states without obtaining the consent of Congress:
a. President Andrew Jackson transmitted to Congress in 1830 a commemorative gold medal that Colombia’s president Simón Bolívar had presented to him. Congress directed that the medal be “deposited in the Department of State.”56
b. President Martin Van Buren in 1840 was offered two horses, a case of rose oil, five bottles of rose water, a package of cashmere shawls, a Persian rug, a box of pearls, and a sword by the Imam of Muscat.57 Writing to the Imam, Van Buren explained that “a fundamental law of the Republic which forbids its servants from accepting presents from foreign States or Princes, precludes me
54 David Robertson, Debates and other Proceedings of the Convention of Virginia 345 (2d ed. 1805) (1788).
55 See supra, ¶ 18. 56 See Message from the President of the United States, at 3 (Jan. 22, 1834), in Message from the President of the United States to the Two Houses of Congress at the Commencement of the First Session of the Twenty-Third Congress, at 259 (1833). 57 14 Abridgment of the Debates of Congress from 1789 to 1856, at 140-41 (Thomas Hart Benton ed., 1860).
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from receiving” the items.58 Van Buren then apprised Congress of the gifts: “I deem it my duty to lay the proposition before Congress, for such disposition as they may think fit to make of it.”59 Congress directed him to deposit the items with the State Department, selling any items that could not “conveniently be deposited or kept” there and placing the proceeds with the U.S. Treasury.60 c. President John Tyler in 1843 was offered two horses by the Imam of Muscat. He notified Congress, seeking direction regarding the disposition of the gifts.61 Congress directed Tyler to sell the horses at auction and place the proceeds with the U.S. Treasury.62 d. President Abraham Lincoln wrote to the King of Siam in 1862 regarding gifts that the King had sent to the President—two decorative elephant tusks, an ornate sword, and a photograph of the King. Lincoln wrote that “our laws forbid the President from receiving these rich presents as personal treasures. . . . Congress being now in session at this capital, I have had great pleasure in making known to them this manifestation of Your Majesty’s munificence and kind consideration.”63 Congress directed that the items be deposited with the
58 Id. at 141 (reprinting Letter from Martin Van Buren to Syed Bin Sutan, Imaum of Muscat (May 8, 1840)).
59 Id. at 140 (reprinting Letter from Martin Van Buren to the Senate (May 21, 1840)). 60 Joint Resolution No. 4, A Resolution to authorize the President to dispose of certain presents from the Imaum of Muscat and the Emperor of Morocco, July 20, 1840, 5 Stat. 409. 61 4 Moore, supra note 15, at 582. 62 An Act to authorize the sale of two Arabian horses, received as a present by the Consul of the United States at Zanzibar, from the Imaum of Muscat, Mar. 1, 1845, 5 Stat. 730. 63 Letter from Abraham Lincoln, President of the United States of America, to His Majesty Somdetch Phra Paramendr Maha Mongut, King of Siam (Feb. 3, 1862), available at http://quod.lib.umich.edu/l/lincoln/lincoln5/1:269.1?rgn=div2;view=fulltext.
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Department of the Interior.64
e. President Benjamin Harrison had “certain medals presented to him by the
Governments of Brazil and Spain during the term of his service as President of the United States.”65 In 1896, Congress authorized him to personally accept the medals.66
f. President John F. Kennedy was offered honorary Irish citizenship in 1963 by
the government of Ireland. The White House sought the views of the
Department of Justice’s Office of Legal Counsel, which advised that acceptance would implicate the Foreign Emoluments Clause.67 Kennedy declined to accept the honor.68
g. President Barack Obama was named the winner of the Nobel Peace Prize in
2009. The White House sought the views of the Office of Legal Counsel, which
advised that acceptance of the prize would not fall within the Foreign
Emoluments Clause because the Nobel Committee that awards the prize is not a foreign state or controlled by a foreign state.69
64 Joint Resolution No. 20, A Resolution providing for the Custody of the Letter and Gifts from the King of Siam, Mar. 15, 1862, 12 Stat. 616.
65 Joint Resolution No. 39, Joint Resolution to authorize Benjamin Harrison to accept certain medals presented to him while President of the United States, Apr. 2, 1896, 29 Stat. 759.
66 Id. 67 Norbert A. Schlei, Office of Legal Counsel, Proposal That the President Accept Honorary Irish Citizenship: Memorandum Opinion for the Special Assistant to the President 278 (May 10, 1963). 68 See Clodagh Sheehy, JFK Had To Turn Down Citizenship Offer From Government, Irish Indep. (Dec. 29, 2006), http://www.independent.ie/irish-news/jfk-had-to-turn-downcitizenship-offer-from-government-26352995.html. 69 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, 1 (2009).
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32. In sum, past presidents have recognized that they are bound by the Foreign Emoluments Clause and have responded accordingly—either seeking Congress’s consent to accept foreign emoluments or simply choosing not to receive them.
33. Although Defendant Donald J. Trump has accepted the privilege of occupying the highest office in the land, he is not obeying the same rules as the federal officers and employees described above or following the example of compliance set by former presidents. He has refused to divest from his businesses and instead continues to accept financial payments and other benefits from foreign states through his many business entities without first obtaining the consent of Congress.
IV. RELEVANT FACTS A. Defendant’s Acceptance of Benefits from Foreign States 34. Defendant is the owner, in whole or in part, of hundreds of businesses, which are “linked in a complex network of interconnected individual corporations, limited liability companies and partnerships. The list includes more than 500 separate entities—hotels, golf courses, media properties, books, management companies, residential and commercial buildings, . . . airplanes and a profusion of shell companies set up to capitalize on licensing deals.”70 These business interests are located in the United States and in at least twenty foreign countries.71 35. While it is well known that Defendant’s business empire is vast and global, the
70 John W. Schoen, Inside Trump’s Holdings: A Web of Potential Conflicts, CNBC.com (Jan. 23, 2017), http://www.cnbc.com/2017/01/19/inside-trumps-holdings-a-web-of-potentialconflicts.html.
71 Marilyn Geewax, Trump’s Businesses and Potential Conflicts: Sorting It Out, NPR (Dec. 5, 2016), http://www.npr.org/2016/12/05/503611249/trumps-businesses-and-potentialconflicts-sorting-it-out; see Donald J. Trump, U.S. Office of Gov’t Ethics Form 278e (May 16, 2016), available at https://www.documentcloud.org/documents/2838696-Trump-2016-FinancialDisclosure.html.
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exact nature of his holdings and the benefits he receives from them remain unclear. Defendant has refused to release his tax returns, and the complicated interconnection between the hundreds of discrete business entities and shell companies in which he owns an interest makes it impossible to determine the full scope of the benefits he is currently accepting from foreign states. Contributing to the lack of transparency, “[o]ver the last 12 months, about 70% of buyers of Trump properties were limited liability companies—corporate entities that allow people to purchase property without revealing all of the owners’ names.”72
36. Defendant has not divested or otherwise given up his ownership interest in his worldwide business holdings since he was elected President of the United States.
37. Defendant has acknowledged, through his personal attorney, that his businesses receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President.73 Further, public reporting has confirmed that Defendant and his businesses have accepted benefits from foreign states since he took office.74
38. These various benefits from foreign governments—payments, loans, permits, exemptions, policy changes, and intellectual property rights—constitute prohibited “Emolument[s]” and/or “present[s]” under the Foreign Emoluments Clause (hereinafter referred to collectively as “Emolument[s]” or “foreign emoluments”).75
72 Nick Penzenstadler et al., Most Trump Real Estate Now Sold to Secretive Buyers, USAToday (June 13, 2017), https://www.usatoday.com/story/news/2017/06/13/trump-propertybuyers-make-clear-shift-secretive-llcs/102399558/?siteID=je6NUbpObpQp94xNqqEtnpXcOmZy086bA.
73 See Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017) (statement of Sheri A. Dillon, Partner, Morgan, Lewis & Bockius LLP), https://www.nytimes.com/2017/01/11/us/politics/trump-press-conference-transcript.html.
74 See infra, ¶¶ 44-67. 75 Historically, certain awards and benefits from foreign states have been understood by Congress and the executive branch to be prohibited by the Clause without a determination of
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39. Defendant has not sought “the Consent of the Congress” with respect to any of the benefits that he has accepted, or will accept, from foreign states in conjunction with his business holdings.
40. Because Defendant has failed to come to Congress and seek consent before accepting foreign emoluments that have been confirmed through public reporting, it is impossible to know whether Defendant is accepting other foreign emoluments that have not yet been made public. Indeed, through his personal attorney, Defendant has indicated that he does not believe the Constitution requires him to seek or obtain Congress’s consent before accepting benefits arising out of exchanges between foreign states and his businesses.76
41. Because Defendant has not sought congressional consent before accepting these foreign emoluments, nor provided information about them to Congress, Plaintiffs are unable to exercise their constitutional prerogative to authorize or reject the specific emoluments he is accepting. While some information about Defendant’s financial dealings with foreign states is publicly available in press reports and financial disclosures, that information is fragmentary. Even where reliable sources confirm specific transactions between foreign states and Defendant’s businesses, the complex structure of those transactions and Defendant’s financial holdings makes it impossible to determine precisely how a given arrangement benefits him or affects the foreign
which specific term or terms they implicate. See, e.g., Schlei, supra note 67, at 280 (“medals and decorations have always been regarded as coming within the constitutional provision, although it has never been precisely articulated whether one of these constitutes a ‘present, Emolument, Office, or Title’”). Whether any of the benefits discussed below are better characterized as “present[s]” or “Emolument[s]” may depend on their terms and the circumstances under which they are conferred—information that Defendant has not fully disclosed.
76 See, e.g., Donald Trump’s News Conference: Full Transcript and Video, supra note 73 (statement of Sheri A. Dillon) (“The Constitution does not require [Defendant] to do anything here.”).
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state in question.77 Without that information, Plaintiffs cannot judge whether they should consent to the acceptance of any particular payment or other benefit from a foreign state, as the Constitution requires.
42. In sum, Defendant’s refusal to disclose to Congress the foreign emoluments he wishes to accept makes it impossible for Plaintiffs to judge whether any specific foreign emoluments should be approved, and often to know of their existence. Defendant has therefore denied Plaintiffs the opportunity to decide, on a case-by-case basis, whether to authorize his acceptance of particular emoluments from foreign states. The Constitution expressly demands that Plaintiffs be given that opportunity.
43. By accepting benefits from foreign states without first obtaining “the Consent of the Congress,” Defendant is therefore committing numerous violations of the Foreign Emoluments Clause. Some of these violations have been partially described in media reports and other publicly available sources, as detailed below. But because Defendant refuses to come to Congress and seek consent, thereby preventing the transparency that “the Consent of the Congress” was designed to provide, other violations, upon information and belief, remain completely hidden.
Acceptance of Intellectual Property Rights 44. On February 14, 2017, the Chinese government registered a trademark to Defendant for branded construction services, “the result of a 10-year legal battle that turned in [Defendant]’s favor after he declared his candidacy.”78 45. On February 27 and March 6, 2017, the Chinese government granted preliminary
77 See Susanne Craig, Trump’s Empire: A Maze of Debts and Opaque Ties, N.Y. Times (Aug. 20, 2016), https://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html?_r=0.
78 Erika Kinetz, China Grants Preliminary Approval to 38 New Trump Trademarks, AP (Mar. 9, 2017), https://apnews.com/8f54b14808a2459f9efcb0089f41f056/China-grantspreliminary-approval-to-38-new-Trump-trademarks.
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approval of 38 new trademarks to Defendant and one of his companies, covering “branded spa and
massage services, golf clubs, hotels, insurance, finance and real estate companies, restaurants, bars, and a trademark class that covers bodyguards, social escorts, and concierge services.”79
46. In May 2017, the Chinese government granted Defendant preliminary approval of
two more trademarks, one for catering services and one that “can be used in clothing like trousers, underwear and suits.”80
47. On June 6 and June 13, 2017, the Chinese government granted Defendant
preliminary approval of eight additional trademarks, covering services that include “construction, advertising, weather forecasting and dietary consulting.”81
48. Circumstances suggest that at least some of these trademarks were approved or
expedited as a result of Defendant’s status as President of the United States. After the preliminary
approval of trademarks in February and March, the director of a Hong Kong intellectual property consultancy “said he had never seen so many applications approved so expeditiously,”82 and those
approvals closely followed Defendant’s abrupt decision as President to honor the one-China
79 Id. Trademarks that receive preliminary approval are automatically registered after ninety days if there are no objections. Id.
80 Sui-Lee Wee, Trump Adds Another Chinese Trademark to His Portfolio, N.Y. Times (May 23, 2017), https://www.nytimes.com/2017/05/23/business/trump-chinatrademarks.html?_r=1; Paul Mozur, Trump Awarded a New Chinese Trademark, This Time for Catering, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/business/trumpchina-trademark.html.
81 Jill Disis & Serenitie Wang, Trump’s Newest Chinese Trademarks: Religious Clothing, Advertising, CNN Money (June 14, 2017), http://money.cnn.com/2017/06/14/news/trumpchinese-trademarks-religious-clothing/index.html; Sui-Lee Wee, Trump Adds More Trademarks in China, N.Y. Times (June 13, 2017), https://mobile.nytimes.com/2017/06/13/business/trumpchina-trademarks.html?emc=edit_th_20170614&nl=todaysheadlines&nlid=51243100&_r=0& referer=.
82 Id.
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policy, in contrast to his earlier statements.83 Moreover, many of the preliminary approvals granted
since Defendant became President were for trademarks that the Chinese government had previously rejected.84 Regarding these reversals, another intellectual property attorney stated:
“The speed with which these appeals were decided is mind-blowing. . . . I have never seen any decisions made that quickly. That suggests special treatment.”85
49. Possession of these various trademarks “offers a potential business foothold for [Defendant]’s family company and protects his name in a country notorious for counterfeiters,”86
benefits that are of particular value to Defendant as his company prepares to build twenty to thirty hotels in major Chinese cities.87 Foreign trademarks “can be enormously valuable—whether they
are intended as groundwork for future business activity or defensive measures against squatting to protect the value of the brand,”88 and a Trump Organization spokesman has stated that the company
has pursued Chinese trademarks “to protect its brand and overall intellectual property rights from third-party infringers.”89
83 Simon Denyer & Philip Rucker, Backing Away From a Fight, Trump To Honor OneChina Policy, Wash. Post (Feb. 10, 2017), https://www.washingtonpost.com/world/asia_pacific/trump-agrees-to-honor-one-china-policy-incall-to-xi-jinping/2017/02/10/ea6e7ece-ef4a-11e6-9973c5efb7ccfb0d_story.html?utm_term=.655101b0f540.
84 See Erika Kinetz, China Approves 9 of Trump’s Trademarks that They Had Previously Rejected, AP (June 14, 2017), http://www.businessinsider.com/ap-china-overturns-rejections-of9-trump-trademarks-2017-6.
85 Id. 86 Kinetz, China Grants Preliminary Approval, supra note 78. 87 Rob Schmitz, Trump’s Hotels in China Could Be a Conflict for the President-Elect, NPR (Nov. 24, 2016), http://www.npr.org/2016/11/24/503236237/trumps-hotels-in-china-couldbe-a-conflict-for-the-president-elect. 88 Kinetz, China Approves 9 of Trump’s Trademarks, supra note 84. 89 Wee, Trump Adds More Trademarks, supra note 81 (statement of Alan Garten, executive vice president and chief legal officer).
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50. By accepting the registration of these trademarks, Defendant has violated the Foreign Emoluments Clause because he did not first seek and obtain “the Consent of the Congress” before accepting these benefits from a foreign state.
51. As of April 2017, according to one investigation, Defendant’s companies had 157 trademark applications pending in 36 foreign nations.90 Accepting the registration of these trademarks would violate the Foreign Emoluments Clause unless Defendant first sought and obtained “the Consent of the Congress,” which he has not done.
Acceptance of Payments for Hotel Rooms and Events 52. In 2013, Trump Old Post Office LLC signed a lease with the General Services Administration, so it could house Trump International Hotel Washington, D.C. in the Old Post Office building located at 1100 Pennsylvania Avenue, N.W., Washington, D.C. 20004. Defendant owns approximately 77 percent of Trump Old Post Office LLC.91 53. “For Washington hotels . . . diplomats’ visits are big business,” and Defendant’s hotel has been “actively courting” foreign diplomats,92 including hiring a “director of diplomatic sales” and hosting an event soon after the November 2016 election in which “[a]bout 100 foreign diplomats, from Brazil to Turkey” were given “a sales pitch about [Defendant]’s newest hotel.”93
90 Sharon LaFraniere & Danny Hakim, Trump’s Trademark Continues Its March Across the Globe, Raising Eyebrows, N.Y. Times (Apr. 11, 2017), https://www.nytimes.com/2017/04/11/us/politics/trump-trademark-ethics.html.
91 See U.S. Office of Gov’t Ethics Form 278e, supra note 71. 92 Eric Lipton & Susanne Craig, At Trump Hotel in Washington, Champagne Toasts in an Ethical ‘Minefield,’ N.Y. Times (Jan. 19, 2017), https://www.nytimes.com/2017/01/19/us/politics/trump-international-hotel-ethics.html. 93 Jonathan O’Connell & Mary Jordan, For Foreign Diplomats, Trump Hotel Is Place To Be, Wash. Post (Nov. 18, 2016), https://www.washingtonpost.com/business/capitalbusiness/2016/11/18/9da9c572-ad18-11e6977a-1030f822fc35_story.html?utm_term=.1a4c839c9c6a.
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An attendee who works with foreign officials noted that “‘[t]he place was packed’” and that “much of the discussion among Washington-based diplomats [was] over ‘how are we going to build ties with the new administration.’”94
54. According to public reports, diplomats plan to stay at the hotel to curry favor with Defendant because of his position as President of the United States. “In interviews with a dozen diplomats . . . some said spending money at Trump’s hotel is an easy, friendly gesture to the new president.”95 According to an Asian diplomat, “Why wouldn’t I stay at [Defendant’s] 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?’”96 One Middle Eastern diplomat put it even more simply: “Believe me, all the delegations will go there.”97
55. Indeed, during the first four months of 2017, Defendant’s company made nearly $2 million in profit from the hotel, although the company had earlier projected that it would lose over $2 million during that period.98 These profits accumulated despite an occupancy rate well below standard for the industry,99 and despite the hotel’s ranking by a “travel group that specializes in high-end accommodations” as “the world’s third-lousiest new hotel.”100 “Driving the profits
94 Id. 95 Id. 96 Id. 97 Id. 98 Jonathan O’Connell, Trump D.C. Hotel Turns $2 Million Profit in Four Months, Wash. Post (Aug. 10, 2017), https://www.washingtonpost.com/politics/trump-dc-hotel-turns-2-millionprofit-in-four-months/2017/08/10/23bd97f0-7e02-11e7-9d08b79f191668ed_story.html?utm_term=.24484d88a37e. 99 Id. 100 Benjamin Freed, Luxury Travel Group Gives Trump’s DC Hotel a Brutal Review, Washingtonian (Dec. 20, 2016), https://www.washingtonian.com/2016/12/20/travel-group-dctrump-hotel-one-worlds-worst-new-luxury-hotels/.
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are the extraordinary prices guests have been willing to pay for rooms,” as the hotel charges “three times the average rate,” making it probably “the most expensive hotel in the city.”101
56. By virtue of his ownership of the Trump International Hotel Washington, D.C., Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality every time foreign diplomats stay at the hotel, foreign embassies hold events there, or foreign governments otherwise pay for rooms there. On information and belief, there have been at least three such incidents since Defendant’s inauguration:
a. In late January 2017, “[a] lobbying firm working for Saudi Arabia paid for a room at [Defendant]’s Washington hotel after Inauguration Day,” as part of its effort to bring activists to Washington “to urge Congress to repeal the law letting 9/11 victims’ families sue the kingdom.”102 This transaction marked “the first publicly known payment on behalf of a foreign government to a Trump property since [Defendant] became president.”103 The lobbying firm made additional payments to the hotel in early February 2017, and all payments were reimbursed by the Saudi government.104 Between November 2016 and February 2017, the firm paid Defendant’s hotel approximately $270,000 for
101 O’Connell, supra note 98. 102 Isaac Arnsdorf, Saudis Foot Tab at Trump Hotel, Politico (Feb. 9, 2017), http://www.politico.com/story/2017/02/trump-hotel-saudi-arabia-234878?cmpid+sf. 103 Id. 104 Byron Tau & Rebecca Ballhaus, Trump Hotel Received $270,000 From Lobbying Campaign Tied to Saudis, Wall St. J. (June 5, 2017), https://www.wsj.com/articles/trump-hotelreceived-270-000-from-lobbying-campaign-tied-to-saudis-1496700739.
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lodging, catering, and parking—all reimbursed by the Saudi government.105
b. On February 22, 2017, the Embassy of Kuwait held its National Day
Celebration at Trump International Hotel Washington, D.C. According to cost
estimates from the hotel, the price of the celebration was between $40,000 and $60,000.106
c. On or about April 6, 2017, the Ambassador & Permanent Representative
of Georgia to the United Nations stayed at Trump International Hotel Washington, D.C.107
57. Defendant has not sought or received “the Consent of the Congress” to accept these
“Emolument[s]” and is therefore violating the Foreign Emoluments Clause when he accepts such
“Emolument[s].”
Acceptance of Payments Derived from Real Estate Holdings
58. Defendant owns Trump Tower, a mixed-use skyscraper located at 725 Fifth
Avenue, New York, N.Y. 10022. Since Defendant became President, at least two entities owned
by foreign states have been tenants of Trump Tower: (1) the Industrial and Commercial Bank of China, which is owned by China,108 and (2) the Abu Dhabi Tourism & Culture Authority, which
105 Id. Public reports do not indicate what portion of these payments were made after Defendant became President, though an executive from the lobbying firm has claimed that the majority of the payments occurred before he became President. Id.
106 Julia Harte, Kuwait Could Pay Up To $60,000 for Party at Trump Hotel in Washington, Reuters (Feb. 27, 2017), http://www.reuters.com/article/us-usa-trump-hotelidUSKBN1640LE.
107 Kaha Imnadze (@kahaimnadze), Twitter (Apr. 6, 2017, 8:49 AM), https://twitter.com/kahaimnadze/status/850012655347789824.
108 Caleb Melby, Stephanie Baker, & Ben Brody, When Chinese Bank’s Trump Lease Ends, Potential Conflict Begins, Bloomberg Pol. (Nov. 28, 2016), https://www.bloomberg.com/politics/articles/2016-11-28/trump-s-chinese-bank-tenant-maynegotiate-lease-during-his-term.
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is owned by the United Arab Emirates.109 59. By virtue of his ownership of Trump Tower and the leases of these entities,
Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality. Defendant has not sought or received “the Consent of the Congress” to accept these “Emolument[s]” and is therefore violating the Foreign Emoluments Clause.
60. Defendant also owns Trump World Tower, which is located at 845 United Nations Plaza, New York, N.Y. 10017.
61. In 2001, the Kingdom of Saudi Arabia purchased a floor of Trump World Tower, and the floor currently belongs to the Saudi Mission to the United Nations.110 At the time of the sale, the floor had “yearly common charges of $85,585 for building amenities.”111
62. If Saudi Arabia continues to pay common charges to Defendant’s company, Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality, and he will have done so without first seeking and receiving “the Consent of the Congress,” in violation of the Foreign Emoluments Clause.
Acceptance of Licensing Fees for “The Apprentice” 63. While serving as President, Defendant remains an executive producer of the MGM-
109 Adam Schreck, In a First, Emirati Foreign Minister Defends Trump Visa Ban, AP (Feb. 1, 2017), http://bigstory.ap.org/article/4ecfcc9c03bb412fae7233be0f53f2b6/first-emiratiforeign-minister-defends-trump-visa-ban. According to a subsequent report, the Abu Dhabi tourism authority ended its lease effective January 31, 2017. Lorraine Woellert, Abu Dhabi Tourism Office Quits Trump Tower, Politico (June 6, 2017), http://www.politico.com/story/2017/06/06/abu-dhabi-trump-tower-tourism-office-239188.
110 Stephen Rex Brown, Exclusive: Donald Trump Made Millions from Saudi Government, but Trashes Hillary Clinton for Saudi Donations to Clinton Foundations, N.Y. Daily News (Sept. 4, 2016), http://www.nydailynews.com/news/politics/exclusive-donald-trumpmade-millions-saudi-government-article-1.2777211.
111 Id. 45

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produced television show “The Apprentice.” In that role, he is contractually entitled to a percentage of the profits derived from licensing the show and its related spin-offs to television networks, including in foreign countries. “The show has current iterations in the U.K., Brazil, Bulgaria, Indonesia and Vietnam; each of these must pay MGM a licensing fee for the show’s name and set-up, a portion of which goes to Trump.”112
64. In the United Kingdom, the television network that pays these licensing fees is owned and operated by the government. Specifically, the state-owned network BBC One broadcasts a version of “The Apprentice,”113 for which the network pays a licensing fee, a portion of which goes to Defendant.
65. By taking a portion of licensing fees paid by foreign governments, Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality, and he will have done so without first seeking and receiving “the Consent of the Congress,” in violation of the Foreign Emoluments Clause.
Acceptance of Regulatory Benefits 66. Defendant is at least part owner of numerous business ventures around the world,
112 Madeline Berg, Here’s How Much Donald Trump Will Earn From Producing ‘Celebrity Apprentice,’ Forbes (Dec. 13, 2016), https://www.forbes.com/sites/maddieberg/2016/12/13/heres-how-much-trump-will-earn-fromproducing-celebrity-apprentice/#505f22311d0c.
113 See The Apprentice, BBC One, http://www.bbc.co.uk/programmes/b0071b63 (last visited June 12, 2017).
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including in Argentina,114 China,115 India,116 Indonesia,117 Scotland,118 Turkey,119 United Arab
Emirates,120 and the Philippines.121 Many of these ventures are in the planning stages, and as
public reports note, “foreign developers could stand to benefit if their governments were to grease
the skids for Trump-branded projects as a way to curry favor with the new American president.”122
Indeed, since the election, there have been reports of Defendant asking for, and receiving, such
help from foreign governments:
a. In November 2016, when Argentine President Mauricio Macri called Defendant
114 Josh Marshall & Catherine Thompson, Cashing in BIGLY in Argentina!, Talking Points Memo (Nov. 21, 2016), http://talkingpointsmemo.com/edblog/cashing-in-bigly-inargentina.
115 Schmitz, supra note 87. 116 Richard C. Paddock et al., Potential Conflicts Around the Globe for Trump, the Businessman President, N.Y. Times (Nov. 26, 2016), https://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html. 117 Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016), https://www.nytimes.com/2016/12/31/world/asia/indonesia-donald-trump-resort.html. 118 Severin Carrell, Trump’s Scotland Golf Resort Proceeds with Expansion Despite Business Pledge, The Guardian (Jan. 14, 2017), https://www.theguardian.com/usnews/2017/jan/14/trump-scotland-golf-resort-conflicts-of-interest. 119 Pema Levy, Trump Admitted to a Conflict of Interest in Turkey, Mother Jones (Nov. 15, 2016), http://www.motherjones.com/politics/2016/11/donald-trump-i-have-little-conflictinterest-turkey. 120 Jon Gambrell, AP Exclusive: Golf Club Shows Pitfalls of Trump Presidency, AP (Jan. 3, 2017), http://bigstory.ap.org/article/f105158bacc94890bc952a26f8a5c819. 121 Jackie Northam, Trump Business Deals in Southeast Asia Raise Conflict of Interest Concerns, NPR (Jan. 6, 2017), http://www.npr.org/sections/parallels/2017/01/06/508411598/trump-business-deals-in-southeastasia-raise-conflict-of-interest-concerns. 122 Rosalind S. Helderman & Tom Hamburger, Trump’s Presidency, Overseas Business Deals and Relations with Foreign Governments Could All Become Intertwined, Wash. Post (Nov. 25, 2016), https://www.washingtonpost.com/politics/trumps-presidency-overseasbusiness-deals-and-relations-with-foreign-governments-could-all-becomeintertwined/2016/11/25/d2bc83f8-b0e2-11e6-861652b15787add0_story.html?utm_term=.9f2b946fffd5.
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to congratulate him on his victory, Defendant reportedly asked him “to deal with the permitting issues that are currently holding up” a project that Defendant and Argentine partners have been working on for a number of years, namely, the development of a major office building in Buenos Aires.123 “[T]hree days after Trump spoke with Argentina’s president, . . . the long delayed project was moving ahead.”124 b. In a meeting “held shortly after the presidential election,” Defendant reportedly “encouraged [British politician Nigel Farage] . . . to oppose the kind of offshore wind farms that [Defendant] believes will mar the pristine view from one of his two Scottish golf courses.”125 c. Further, “[d]ays after [Defendant]’s election victory, a news agency in the former Soviet republic of Georgia reported that a long-stalled plan for a Trumpbranded tower in a seaside Georgian resort town was now back on track.”126 67. Defendant’s acceptance of any benefits from foreign governments related to his business ventures abroad—including payments, loans, permits, exemptions, tax incentives, and favorable policy changes—would violate the Foreign Emoluments Clause unless Defendant first sought and obtained “the Consent of the Congress,” which he has not done. Consequences of Defendant’s Failure To Comply with the Constitution 68. Defendant’s refusal to seek and obtain “the Consent of the Congress” before
123 Marshall & Thompson, supra note 114. 124 Helderman & Hamburger, supra note 122. 125 Danny Hakim & Eric Lipton, With a Meeting, Trump Renewed a British Wind Farm Fight, N.Y. Times (Nov. 21, 2016), https://www.nytimes.com/2016/11/21/business/with-ameeting-trump-renewed-a-british-wind-farm-fight.html. 126 Helderman & Hamburger, supra note 122.
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accepting the payments and benefits discussed above suggests that Defendant may have accepted other payments and benefits from foreign states that have not yet been made public. Neither the Plaintiffs nor the public, therefore, can know the full range of Defendant’s unconstitutional acceptance of foreign emoluments.
69. By accepting such benefits without first obtaining congressional consent, Defendant is causing the harms that the Founders sought to prevent when they adopted the Foreign Emoluments Clause. The Clause was meant to ensure “the undivided loyalty of individuals occupying positions of trust under our government,”127 because, as the Founders recognized, “[t]hose who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty.”128 Defendant’s conduct deprives the American people of assurance that their highest elected official is pursuing their best interests with undivided loyalty.
70. For instance, as Defendant addresses critical trade issues with China, which could dramatically affect the American economy and American jobs, he may be influenced by the fact that New York’s Trump Tower will soon be renegotiating its lease with the state-owned Industrial and Commercial Bank of China,129 or the fact that the Chinese government recently granted him numerous trademarks enabling his companies to pursue lucrative business opportunities in that country.130
127 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. at 100.
128 Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. at 18.
129 Melby, Baker, & Brody, supra note 108. 130 Kinetz, China Grants Preliminary Approval, supra note 78.
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71. As Defendant brokers arms deals with Saudi Arabia,131 as he navigates conflicts
between Saudi Arabia and Qatar,132 and as he decides whether to commit U.S. resources to support
Saudi military actions in Yemen, which potentially could escalate and put American
servicemembers in harm’s way, he may be influenced by his desire to pursue hotel deals in Saudi
Arabia requiring government approvals.133 Indeed, Defendant said during the presidential
campaign that he “would want to protect Saudi Arabia” from Iranian aggression and also stated:
“Saudi Arabia, I get along with all of them. They buy apartments from me. They spend $40
million, $50 million. Am I supposed to dislike them?”134
72. As Defendant decides how to shape U.S. policy toward Russia, he may be
influenced by his long-standing, though yet unrealized, desire to build housing and hotels in
Russia,135 which could also require government approvals or licenses. Indeed, Donald Trump Jr.,
131 Michael J. de la Merced, Saudi Arabia To Invest $20 Billion in Infrastructure, Mostly in U.S., N.Y. Times (May 20, 2017), https://www.nytimes.com/2017/05/20/business/dealbook/saudi-arabia-to-invest-20-billion-ininfrastructure-mostly-in-us.html; Mark Landler et al., $110 Billion Weapons Sale to Saudis Has Jared Kushner’s Personal Touch, N.Y. Times (May 18, 2017), https://www.nytimes.com/2017/05/18/world/middleeast/jared-kushner-saudi-arabia-arms-deallockheed.html.
132 David D. Kirkpatrick, Trump’s Business Ties in the Gulf Raise Questions About His Allegiances, N.Y. Times (June 17, 2017), https://www.nytimes.com/2017/06/17/world/middleeast/trumps-business-ties-in-persian-gulfraise-questions-about-his-allegiances.html?cn=bWVudGlvbg%3D%3D&_r=0 (noting that Defendant’s position on this dispute differed from the position of his Secretary of State).
133 Drew Harwell & Anu Narayanswamy, A Scramble To Assess the Dangers of President-Elect Donald Trump’s Global Business Empire, Wash. Post (Nov. 20, 2016), https://www.washingtonpost.com/business/economy/a-scramble-to-assess-the-dangers-ofpresident-elects-global-business-empire/2016/11/20/1bbdc2a2-ad18-11e6-a31b4b6397e625d0_story.html?utm_term=.0926499e36bb.
134 Id. 135 Oren Dorell, Donald Trump’s Ties to Russia Go Back 30 Years, USA Today (Feb. 15, 2017), https://www.usatoday.com/story/news/world/2017/02/15/donald-trumps-ties-russia-goback-30-years/97949746/; see Mike McIntire, Russia Renewed Unused Trump Trademarks in 2016, N.Y. Times (June 18, 2017), https://www.nytimes.com/2017/06/18/us/politics/russia-
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Defendant’s son and an executive in the Trump Organization, has in the past acknowledged the
business ties between Defendant and Russia, noting in 2008 that “Russians make up a pretty
disproportionate cross-section of a lot of our assets” and that “we see a lot of money pouring in from Russia.”136
73. Finally, as Defendant weighs the United States’ response to allegations that
Philippine president Rodrigo Duterte has endorsed extrajudicial killings and other human rights
abuses, he may be influenced by the millions of dollars he is set to receive in licensing revenue
from the new Trump Tower in Manila, particularly because his business partner in that venture was appointed by President Duterte to serve as a top trade envoy to the United States.137
74. As Defendant makes countless other foreign policy decisions, he may similarly be
influenced by how those decisions will affect his business pursuits. And because Defendant is not
coming to Congress and identifying the emoluments he wishes to accept, the American people will
have no way of knowing whether his actions as President reflect only his beliefs about what is best
for the country, or whether they are partly motivated by personal financial considerations. For
instance, when Defendant publicly advocated during the presidential campaign for a ban on
trump-trademarks.html (“The extension of trademarks such as ‘Trump International Hotel and Tower’ protects his brand in that country and preserves conditions for potential business deals.”); see also Kevin G. Hall & Ben Wieder, Trump Dreamed of His Name on Towers Across Former Soviet Union, McClatchy (June 28, 2017), http://www.mcclatchydc.com/news/nationworld/national/article158518589.html.
136 Rosalind S. Helderman, Here’s What We Know About Donald Trump and His Ties to Russia, Wash. Post (July 29, 2016), https://www.washingtonpost.com/politics/heres-what-weknow-about-donald-trump-and-his-ties-to-russia/2016/07/29/1268b5ec-54e7-11e6-88eb7dda4e2f2aec_story.html?utm_term=.d25e09c907e7.
137 Drew Harwell & Matea Gold, While in White House, Trumps Remained Selling Points for ‘Very Special’ Philippines Project, Wash. Post (May 2, 2017), https://www.washingtonpost.com/politics/while-in-white-house-trumps-remained-selling-pointsfor-very-special-philippines-project/2017/05/02/09ee6164-2e99-11e7-9dec764dc781686f_story.html?utm_term=.b60fdfde5a42.
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Muslims entering the United States, Turkish President Recep Tayyip Erdogan called for Defendant’s name to be removed from the Trump Towers Istanbul, two high-rises containing offices and luxury apartments, connected by a shopping mall. But after Defendant subsequently defended Erdogan’s suppression of political dissidents, “the calls for the renaming of the Trump Towers Mall ended.”138 Defendant himself has acknowledged that he has “a little conflict of interest” regarding Turkey because “I have a major, major building in Istanbul.”139
75. To avoid even the possibility that conflicts of interest like these would harm the American people by compromising the judgment of their leaders, the Founders laid down the strict prohibitions of the Foreign Emoluments Clause.
B. Plaintiffs’ Injuries 76. The text of the Foreign Emoluments Clause expressly assigns members of Congress a role in regulating federal officeholders’ acceptance of emoluments from foreign states. By providing that persons holding an “Office of Profit or Trust” under the United States may accept such “Emolument[s]” with, and only with, “the Consent of the Congress,” the Constitution makes clear that members of Congress must have the opportunity to cast a binding vote that gives or withholds their “Consent” before the President or any other federal officeholder accepts a foreign “Emolument.” 77. Since taking office, Defendant has accepted, or necessarily will accept, numerous emoluments from foreign states. 78. Congress has not consented to Defendant’s acceptance of any of the emoluments that he has received or will be receiving in the future.
138 Paddock et al., supra note 116. 139 Harwell & Narayanswamy, supra note 133.
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79. Although the Foreign Emoluments Clause places on federal officeholders who wish
to accept “Emolument[s]” the burden of seeking “the Consent of the Congress,” Defendant has
never sought Congress’s consent for his acceptance of these foreign emoluments.
80. Similarly, Defendant has not provided Congress with any information about the
foreign emoluments he has accepted or the transactions that produced them.
81. Defendant’s refusal to seek Congress’s consent and provide information about the
foreign emoluments he is accepting makes it impossible for Plaintiffs to evaluate the unique
circumstances of each emolument and decide, on a case-by-case basis, whether any of those
specific emoluments should be approved.
82. By accepting emoluments without “the Consent of the Congress,” Defendant has
violated the Foreign Emoluments Clause. In the process, Defendant has deprived Plaintiffs of their
ability to vote on which emoluments he, as a federal officeholder, may accept. When legislators’ votes are “completely nullified” or “deprived of all validity,”140 they may seek judicial redress to “have their votes given effect.”141 Such nullification occurs both where a previously cast vote has
been unlawfully disregarded and where, as here, legislators are unlawfully denied an “opportunity to cast a binding vote” in the first place.142 By refusing to seek Plaintiffs’ consent as
140 Raines v. Byrd, 521 U.S. 811, 822-23 (1997). 141 Coleman v. Miller, 307 U.S. 433, 438 (1939); see Kennedy v. Sampson, 511 F.2d 430, 436 (D.C. Cir. 1974) (recognizing legislator’s standing “to vindicate the effectiveness of his vote” after “an illegal nullification” by the executive branch). 142 Goldwater v. Carter, 617 F.2d 697, 702-03 (D.C. Cir. 1979) (en banc) (recognizing standing where President’s action “deprived each individual Senator of his alleged right to cast a vote” on whether to terminate a treaty), vacated on other grounds, 444 U.S. 996 (1979); see Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663, 2665 (2015) (recognizing standing where action that “strips the Legislature of its alleged prerogative to initiate redistricting” would “completely nullify any vote by the Legislature, now or in the future,” on that topic (brackets and quotation marks omitted)); Moore v. U.S. House of Representatives, 733 F.2d 946, 949 (D.C. Cir. 1984) (recognizing standing where members of the House of Representatives were allegedly denied their constitutional prerogative “to originate
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constitutionally required, “[t]he President’s action has deprived them of this opportunity completely, in the sense that they have no legislative power to exercise an equivalent voting opportunity.”143 Plaintiffs thus have “a plain, direct and adequate interest in maintaining the effectiveness of their votes” on whether consent should be given to Defendant’s acceptance of foreign emoluments.144
83. Without a judicial order, Plaintiffs cannot force Defendant to obey the Constitution’s text by seeking their consent before accepting such foreign emoluments. The declaratory and injunctive relief that Plaintiffs are seeking would redress this injury by ensuring that Defendant accepts no “present, Emolument, Office, or Title” from any “foreign State” without first giving them an opportunity to vote on whether to provide their consent.
V. CLAIMS COUNT I Violations of the Foreign Emoluments Clause (Declaratory Relief) 84. Plaintiffs re-allege and incorporate by reference each and every foregoing paragraph of this Complaint as if set forth here in full. 85. 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. Specifically, Plaintiffs allege that Defendant, by virtue of his continuing ownership of vast business interests
bills for raising revenues”); Am. Fed’n of Gov’t Emps., AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982) (recognizing standing where legislator was allegedly deprived by the executive branch of his “statutory right to participate in the legislative process”); cf. Raines, 521 U.S. at 824 (denying standing because legislators could not claim that the statute they were challenging “will nullify their votes in the future”).
143 Goldwater, 617 F.2d at 703. 144 Coleman, 307 U.S. at 438.
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around the world, has been, or necessarily soon will be, accepting emoluments from foreign states. Because Defendant has not sought and received the consent of Congress, he is in violation of the Foreign Emoluments Clause. Defendant, through his personal attorney, has indicated that he disagrees with these allegations, believing instead that “[t]he Constitution does not require [Defendant] to do anything here.”145
86. Plaintiffs are entitled to declaratory relief under 28 U.S.C. § 2201. A declaration resolving the actual controversy between Plaintiffs and Defendant will aid in the resolution of legal issues in this action. Without this relief, Plaintiffs will continue to suffer injury.
COUNT II Violations of the Foreign Emoluments Clause
(Injunctive Relief) 87. Plaintiffs re-allege and incorporate by reference each and every foregoing paragraph of this Complaint as if set forth here in full. 88. Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause. 89. The Foreign Emoluments Clause prohibits “Person[s] holding any Office of Profit or Trust” under the United States from accepting “present[s]” or “Emolument[s] . . . of any kind whatever”—that is, anything of value and any benefits, monetary or nonmonetary—from “any King, Prince, or foreign State,” without “the Consent of the Congress.” 90. As described more fully in paragraphs 34-62 herein, Defendant has committed and, absent this Court’s intervention, will continue to commit violations of the Foreign Emoluments Clause because he has accepted, or necessarily will accept, “Emolument[s]” from foreign states without obtaining the consent of Congress.
145 Donald Trump’s News Conference: Full Transcript and Video, supra note 73. 55

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91. By accepting “Emolument[s]” from foreign states without obtaining the consent of Congress, Defendant has denied each Plaintiff the opportunity to cast binding votes on whether to provide his or her consent to Defendant’s acceptance of these individual “Emolument[s].”
92. Plaintiffs are entitled to injunctive relief to stop the above-mentioned injury, and this Court has the power to grant such relief pursuant to its inherent ability to grant equitable relief and pursuant to 28 U.S.C. § 1331. Such relief would order Defendant not to accept “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of the Congress,” thus ensuring that individual members of Congress have the opportunity to vote on a case-by-case basis whether to give their consent, as the Constitution requires.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in Plaintiffs’ favor and against Defendant, consisting of: (a) A declaratory judgment stating that: (1) Defendant is a “Person holding any Office of Profit or Trust” within the meaning of the Foreign Emoluments Clause; (2) the Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting any benefits of value, monetary or nonmonetary, from “any King, Prince, or foreign State”; (3) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; and (4) by accepting “Emolument[s]” from foreign states without first seeking and obtaining “the Consent of the Congress,” Defendant is violating the Foreign
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Emoluments Clause; (b) Injunctive relief, enjoining Defendant from accepting “Emolument[s]” from
foreign states without first obtaining the consent of Congress; and (c) Such other and further relief as this Court may deem just and proper. Dated: August 15, 2017
CONSTITUTIONAL ACCOUNTABILITY CENTER By: /s/ Brianne J. Gorod
Brianne J. Gorod Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Brian R. Frazelle (DC Bar No. 1014116) CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, N.W. Suite 501 Washington, D.C. 20036 (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org
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 Case 1:17-cv-01154-EGS Document 59 Filed 09/28/18 Page 1 of 58

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________

)

Senator RICHARD BLUMENTHAL,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)Civil Action No. 17-1154 (EGS)

)

DONALD J. TRUMP, in his official )

capacity as President of the

)

United States,

)

)

Defendant.

)

_________________________________)

MEMORANDUM OPINION

I. Introduction

When Members of Congress sue the President in federal court

over official action, a court must first determine whether the

dispute is a “Case” or “Controversy” under Article III of the

United States Constitution, rather than a political dispute

between the elected branches of government. A critical part of

this inquiry is whether the plaintiffs have legal standing to

bring the action. Whether legislators have standing to sue often

turns on whether they can obtain the remedy they seek from the

court from fellow legislators. When a legislative remedy is

available, courts generally dismiss the case on jurisdictional

grounds. The Supreme Court, however, has not foreclosed federal

courts from appropriately exercising jurisdiction over certain

types of disputes between the political branches. This case is

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one of those disputes. And when a case is properly before a court because it presents an Article III “Case” or “Controversy,” it is the role of the Judiciary “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).
Plaintiffs, approximately 201 minority Members of the 535 Members of the United States Senate and House of Representatives, allege that Donald J. Trump in his official capacity as President of the United States (“the President”) is violating the Foreign Emoluments Clause (“Clause”). Under this Clause, certain federal officials, including the President, may not “accept” an “emolument” from “any King, Prince or foreign State” without “the Consent of Congress.” U.S Const. art. I, § 9, cl. 8. In Count I, plaintiffs seek declaratory relief pursuant to 28 U.S.C. § 2201 in the form of a declaratory judgment stating that the President is violating the Clause when he accepts emoluments from foreign states without first seeking the consent of Congress. Am. Compl., ECF No. 14 ¶¶ 85-86. In Count II, plaintiffs seek injunctive relief pursuant to the Court’s inherent authority to grant equitable relief and pursuant to 18 U.S.C. § 1331 in the form of a Court order enjoining the President from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of Congress.” Id. ¶ 92.
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Pending before the Court is the President’s motion to dismiss. The President argues that this case should be dismissed on four independent grounds,1 but the threshold question is whether plaintiffs have standing to bring their claims. This opinion addresses only this threshold question. With respect to the grounds for dismissal that turn on the merits, the parties dispute whether the profits that the President’s business interests earn from foreign governments are covered “emoluments.” However, for the purpose of determining whether plaintiffs have standing to sue, the Court must accept as true the allegations that the President has accepted prohibited foreign emoluments without seeking the consent of Congress.
As is explained more fully below, the central question for standing purposes is how to characterize the injury that occurs when the President fails to seek the consent of Congress, as required by the Clause. Plaintiffs argue that each Member of Congress suffers a particularized and concrete injury when his or her vote is nullified by the President’s denial of the opportunity to vote on the record about whether to approve his
1 The President seeks dismissal on these grounds: (1) lack of subject matter jurisdiction because plaintiffs do not have standing to bring their claims; (2) lack of a cause of action to seek the relief requested; (3) failure to state a claim upon which relief can be granted; and (4) the injunctive relief sought is unconstitutional. Def.’s Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 15-1 at 17-18.
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acceptance of a prohibited foreign emolument. The President argues that this is an intra-branch dispute which does not belong in federal court because the plaintiffs’ remedy is to convince a majority of their colleagues in both Houses to pass legislation addressing the President’s ability to accept prohibited foreign emoluments.
Upon careful consideration of the President’s motion to dismiss, the opposition and reply thereto, the relevant arguments of amici,2 the parties’ arguments at the June 7, 2018 motion hearing, and for the reasons explained below, the Court finds that the plaintiffs have standing to sue the President for allegedly violating the Foreign Emoluments Clause. The Court therefore DENIES IN PART the motion to dismiss and DEFERS ruling on the remaining arguments in the motion to dismiss. II. Factual Background
Relevant to whether they have standing to bring their claims, plaintiffs allege that the President “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments.” Am. Compl., ECF No. 14 ¶ 2. Plaintiffs also allege that the President owns “‘more than 500 separate entities–hotels, golf courses, media properties, books,
2 The Court appreciates the illuminating analysis provided by the amici.
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management companies, residential and commercial buildings . . . airplanes and a profusion of shell companies set up to capitalize on licensing deals.’” Id. ¶ 34 (citation omitted).
As a result of his financial interests, plaintiffs allege the President has accepted, and will accept in the future, emoluments from foreign states. Id. Indeed, the President has acknowledged “that his businesses receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President.” Id. ¶ 37. Public reporting has also confirmed this to be the case. Id. The President, through his personal attorney, has likewise asserted that the Constitution does not require “him to seek or obtain Congress’ consent before accepting benefits arising out of exchanges between foreign states and his businesses.” Id. ¶ 40. The President has therefore not provided any information to Congress about any foreign emoluments he has received. Id. ¶ 41. Plaintiffs allege that because the President has denied them the opportunity to give or withhold their consent, he has injured them in their roles as Members of Congress, id. ¶ 5, and that they cannot force the President to comply with the Constitution absent a judicial order, id. ¶ 83. III. Standard of Review
A motion to dismiss for lack of standing is properly considered a challenge to the Court's subject matter
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jurisdiction and should be reviewed under Federal Rule of Civil Procedure 12(b)(1). Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)(“[T]he defect of standing is a defect in subject matter jurisdiction.”). The Court must therefore consider the defendant’s motion to dismiss pursuant to Rule 12(b)(1) before reaching a merits challenge pursuant to Rule 12(b)(6). Sinochem Int’l Co. v. Malay Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007). To survive a Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Moran v. U.S. Capitol Police Bd., 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). “Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, the court must scrutinize the plaintiff's allegations more closely when considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under a motion to dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011). In so doing, the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of plaintiffs, but the court need not “accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 63 (D.D.C. 2001).
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IV. Analysis A. Standing “Article III of the Constitution limits the jurisdiction of
the federal courts to ‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting U.S. Const. art. III, § 2). “‘One element of the case-orcontroversy requirement’ is that plaintiffs ‘must establish that they have standing to sue.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). The standing requirement “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. The standing inquiry “often turns on the nature and source of the claim asserted” and the specific facts alleged. Warth v. Seldin, 422 U.S. 490, 500 (1975). “[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752 (1984).
To establish standing, “a plaintiff must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Susan B. Anthony List, 134 S. Ct. at 2341 (quoting Lujan, 504 U.S. at 560-61 (1992)); see also Hollingsworth v. Perry, 570 U.S. 700, 705 (2013) (“To have standing, a litigant
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must seek relief for an injury that affects him in a personal and individual way.”). These requirements help 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. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). “The [effect of the] exercise of judicial power [is] most vivid when a federal court declares unconstitutional an act of the Legislative or Executive Branch.” Id. at 473. Therefore, to ensure the “continued effectiveness of the federal courts in performing that role . . . it has been recognized as a tool of last resort.” Id. at 473-74.
“The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561 (citations omitted). “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id.
When considering whether a legislator has standing, the Court “must carefully inquire as to whether [plaintiffs] have met their burden of establishing that their claimed injury is
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personal, particularized, concrete, and otherwise judicially cognizable.” Raines, 521 U.S. at 820. The “standing inquiry [is] especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Id. at 819-20.
B. Foreign Emoluments Clause The Foreign Emoluments Clause provides:
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. I, § 9, cl. 8. “[T]he language of the Emoluments Clause is both sweeping and unqualified.” 17 Op. O.L.C. 114, 121 (1993). The acceptance of an emolument barred by the Clause is prohibited unless Congress chooses to permit an exception. Id.; see also Letter from James Madison to David Humphreys (Jan. 5, 1803), https://founders.archives.gov/documents/Madison/02-04-020275# (“the Constitution of the United States has left with Congress the exclusive authority to permit the acceptance of presents from foreign Governments by persons holding Offices under the United States”). And the President may not accept any emolument until Congress votes to give its consent.
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The Clause was intended by the Framers to guard against “corruption and foreign influence.” 3 M. Farrand, Records of the Federal Convention of 1787, 327 (1966). Historically, Presidents have complied with the Clause by either seeking and obtaining congressional consent prior to accepting foreign presents or emoluments, or by requesting an opinion from the Executive or Legislative Branch’s advisory office as to whether the Clause applies.3 See Br. of Federal Jurisdiction and Constitutional Law Scholars as Amici Curiae in Support of Pls., ECF No. 44 at 24.4 One such example occurred in 1830 when President Jackson placed “‘at the disposal of Congress’” a gold medal presented to him by the Republic of Colombia, noting that accepting presents from a foreign government is prohibited by the Constitution. Id. (quoting Message of President Andrew Jackson to the Senate and House of Representatives, dated January 19, 1830, 3 Compilation of the Messages and Papers of the Presidents 1029, 1030 (James D. Richardson ed., 1897)). Similarly, when the King of Siam presented President Lincoln with various gifts, he informed Congress, which directed that the gifts “‘be deposited in the
3 In deciding a motion to dismiss, “a Court may take judicial notice of historical, political, or statistical facts, or any other facts that are verifiable with certainty.” Youkelsone v. FDIC, 910 F. Supp. 2d 213, 221 (D.D.C. 2012) (citing Mintz v. FDIC, 729 F. Supp. 2d 276, 278 n.2 (D.D.C. 2010)). 4 When citing electronic filings throughout this opinion, the Court cites to the ECF header page number, not the original page number of the filed document.
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collection of curiosities at the Department of Interior.’” Id. at 25 (quoting Joint Resolution No. 20, A Resolution providing for the Custody of the Letter and Gifts from the King of Siam, Res. 20, 37th Cong., 12 Stat. 616 (1862)).
Modern Presidents, except for President Trump, have sought advice from the Department of Justice Office of Legal Counsel (“OLC”) prior to accepting potentially covered emoluments. Id. For example, President Kennedy requested an opinion on whether the offer of an “honorary Irish citizenship” would fall within the scope of the Clause. Id. (citing 1 Op. O.L.C. Supp. at 278). And prior to his acceptance of the Nobel Peace Prize in 2009, President Obama requested an opinion from OLC as to whether accepting the prize would conflict with the Clause. Id.
Since the Clause prohibits the President from accepting a prohibited foreign emolument unless Congress votes to consent, the Constitution gives each individual Member of Congress a right to vote before the President accepts. Under the Constitution, Congress expresses its consent through the combined votes of its individual members. U.S. Const. art. I, § 9, cl. 8. Congress “consist[s] of a Senate and House of Representatives.” Id. art. I, § 1. The “Consent of Congress” is obtained when a majority of the individual members of each House vote to consent. Id. art. I, § 3, cl. 1 (“each Senator shall have one Vote”); id. art. I, § 5, cl. 3 (requiring, at the
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request of one-fifth of those present, that “the Yeas and Nays of the Members of either House on any question” to be recorded). That Congress acts as “the body as a whole”5 in providing or denying consent does not alter each Member’s constitutional right to vote before the President accepts a prohibited foreign emolument because the body can give its consent only through a majority vote of its individual members.
C. Plaintiffs Have Standing to Bring their Claims The President argues that the Court lacks jurisdiction over plaintiffs’ claims because plaintiffs have not met their burden to establish a judicially cognizable injury as is required by Article III. Def.’s Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 15 at 21-28; Def.’s Reply (“Reply”), ECF No. 28 at 10-19. The President also disputes that the alleged injury is fairly traceable to him. Mot. to Dismiss, ECF No. 15-1 at 24; Reply, ECF No. 28 at 8. Plaintiffs contend that they have standing: (1) the injuryin-fact they have suffered is that the President has denied them a voting opportunity to which the Constitution entitles them; (2) the injury is fairly traceable to the President’s conduct
5 United States v. Ballin, 144 U.S. 1, 7 (1892) (“The two houses of congress are legislative bodies representing larger constituencies. Power is not vested in any one individual, but in the aggregate of the members who compose the body, and its action is not the action of any separate member or number of members, but the action of the body as a whole.”).
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because he has neither asked for their consent nor provided them with any information about the prohibited foreign emoluments he has already allegedly accepted; and (3) the injury can be redressed by a favorable judicial decision if the Court requires the President to obtain congressional consent before accepting prohibited foreign emoluments. Pls.’ Opp’n, ECF No. 17 at 13.
As discussed below, the President’s arguments rely on a repeated misstatement of the injury alleged and on proffers of plainly inadequate legislative remedies. The Court is persuaded that plaintiffs have sustained their burden to show that they have standing to bring their claims: (1) they have adequately alleged a judicially cognizable injury that is fairly traceable to the President and can be redressed by a favorable judicial decision; and (2) although plaintiffs’ claims raise separationof-powers concerns, plaintiffs have no adequate legislative remedy and this dispute is capable of resolution through the judicial process.
1. Supreme Court and D.C. Circuit Precedent a. Raines v. Byrd
The parties rely heavily on the Supreme Court’s decision in Raines v. Byrd. See generally Mot. to Dismiss, ECF No. 15-1; Pls.’ Opp’n, ECF No. 17; Reply, ECF No. 28 (discussing Raines, 521 U.S. 811 (1997)). The President argues that plaintiffs lack standing pursuant to Raines; plaintiffs respond that Raines does
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not foreclose their standing to bring their claims and indeed provides support for it. The Court will therefore discuss the case in detail.
In Raines, six members of Congress who had voted against the Line Item Veto Act (“Act”) sued the Secretary of the Treasury and the Director of the Office of Management and Budget, challenging the constitutionality of the Act. Raines, 521 U.S. at 814. The Act authorized the President to “‘cancel’ certain spending and tax benefit measures after he ha[d] signed them into law.” Id. The plaintiffs claimed that the Act injured them in their official capacities by: (1) “‘alter[ing] the legal and practical effect of all votes they may cast on bills’” subject to the Act; (2) “‘divest[ing] [them] of their constitutional role in the repeal of legislation’”; and (3) “‘alter[ing] the constitutional balance of powers between the Legislative and Executive Branches . . . .’” Id. at 816 (quoting Compl.).
At issue was whether the plaintiffs had standing to bring their claims. The Court began its inquiry by focusing on the requirement in standing analysis that the injury be a personal one: “We have consistently stressed that a plaintiff’s complaint must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury suffered is particularized as to him.” Id. at 819 (quoting Lujan, 504 U.S. at 560-61 and
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n.1). Next, the Court noted “[w]e have also stressed that the alleged injury must be legally and judicially cognizable. This requires, among other things, that the plaintiff have suffered ‘an invasion of a legally protected interest which is . . . concrete and particularized,’ Lujan, 504 U.S. at 560, and that the dispute is ‘traditionally thought to be capable of resolution through the judicial process.’” Id. (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). Finally, the Court noted that the jurisdictional standing requirement must be strictly complied with: “our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Id. at 819-20 (citations omitted). “‘[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.’” Id. at 820 (quoting Allen, 468 U.S. at 751). In view of these observations, the Court concluded that it “must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.” Id.
The Court distinguished Powell v. McCormack, in which it held that a Congressman’s “constitutional challenge to his exclusion from the House of Representatives (and his consequent
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loss of salary) presented an Article III case or controversy,”
id. at 820-21 (citing Powell, 395 U.S. 486, 496, 512-14 (1969)),
on two grounds. First, the Raines plaintiffs had not been
singled out for unfavorable treatment from the other members of
their respective bodies as occurred in Powell; rather, “[t]heir
claim is that the Act causes a type of institutional injury (the
diminution of legislative power), which necessarily damages all
Members of Congress and both Houses of Congress equally.” Id. at
821. Second, the Raines plaintiffs “[did] not claim that they
have been deprived of something to which they are personally
entitled . . .” id.; rather, their
claim of standing is based on a loss of political power, not loss of any private right, which would make the injury more concrete. . . . [T]he injury claimed by the Members of Congress here is not claimed in any private capacity but solely because they are Members of Congress. If one of the Members were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead. The claimed injury thus runs (in a sense) with the Member’s seat, a seat which the Member holds (it may quite arguably be said) as trustee for his constituents, not as a prerogative of personal power.
Id. (internal citation omitted). Thus, according to the Court,
the Raines plaintiffs’ injury was an institutional one and not
sufficiently concrete and personal.
The Court then distinguished Coleman v. Miller, “[t]he one
case in which we have upheld standing for legislators (albeit
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state legislators) claiming an institutional injury.” Id. (discussing Coleman v. Miller, 307 U.S. 433 (1939)). In Coleman, the vote on whether to ratify a proposed federal constitutional amendment was tied at twenty to twenty, which meant the amendment would not have been ratified. Id. at 822 (citing Coleman, 307 U.S. at 436). The Lieutenant Governor, as the presiding officer of the State Senate, cast a vote in favor of the amendment and it was deemed ratified. Id. The twenty state senators who had voted against the amendment sued, and eventually the Court held that the members of the legislature had standing because “if these legislators (who were suing as a bloc) were correct on the merits, then their votes not to ratify the amendment were deprived of all validity.” Id. In Raines, the Court clarified that “our holding in Coleman stands . . . for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Id. at 823. Noting that this is what the Coleman holding stands for “at most,” the Court declined to distinguish Coleman on, inter alia, the ground that “Coleman has no applicability to a similar suit brought by federal legislators, since the separation-of-powers concerns present in such a suit were not present in Coleman . . . .” Id. at 824 n.8.
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The Court then distinguished the claims in Raines from
those in Coleman:
[Here], [plaintiffs] have not alleged that they voted for a specific bill, that there were sufficient votes to pass the bill, and that the bill was nonetheless deemed defeated. In the vote on the Act, their votes were given full effect. They simply lost that vote. Nor can they allege that the Act will nullify their votes in the future in the same way that the votes of the Coleman legislators had been nullified. In the future, a majority of Senators and Congressmen can pass or reject appropriations bills; the Act has no effect on this process. In addition, a majority of Senators and Congressmen can vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process.
Id. at 824 (footnote omitted). Thus, according to the Court, the
Raines plaintiffs could not allege that their votes had been
nullified in the past; rather, they had lost the vote on the
Act. See id. And the Raines plaintiffs could not allege that
their votes would be nullified in the future because they had a
variety of legislative remedies at their disposal. See id.
The Court then considered the lack of a historical practice
of lawsuits being filed “on the basis of claimed injury to
official authority or power” as a result of analogous
confrontations between the Legislative and Executive Branches of
the federal government. Id. at 826; see also infra Section
IV.3.b. The Court concluded that, under the Constitution, it is
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not the role of the Article III courts to have “‘some amorphous general supervision of the operations of government . . . .’” Raines, 521 U.S. at 829 (quoting United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring)).
The Court rejected the Raines plaintiffs’ basis for standing, ultimately holding that “these individual members of Congress do not have a sufficient ‘personal stake’ in this dispute and have not alleged a sufficiently concrete injury to have established Article III standing.” Id. at 830 (no citation for internal quotation in original). In so holding, the Court noted that “appellees have alleged no injury to themselves as individuals (contra, Powell), the institutional injury they allege is wholly abstract and widely dispersed (contra, Coleman), and their attempt to litigate this dispute at this time and in this form is contrary to historical experience.” Id. at 829. The Court stated that it “attach[ed] some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” Id. (footnote omitted). The Court also thought it important to note that “our conclusion [does not] deprive[] Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach) nor forecloses the Act from constitutional
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challenge (by someone who suffers judicially cognizable injury as a result of the Act).” Id.
b. Arizona State Legislature v. Arizona Independent Redistricting Commission
Relying on Coleman, the Supreme Court recently reaffirmed that legislators, albeit state legislators as an institutional plaintiff, have standing to sue based on a vote nullification claim. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the state legislature plaintiff challenged a ballot measure that would have denied it the authority to draw congressional districts. 135 S. Ct. 2652, 2659 (2015). The legislature’s alleged injury was that the ballot initiative deprived it of its legislative prerogative to initiate redistricting. Id. at 2663. Relying on Coleman, as clarified in Raines, the Court held that the plaintiff had standing because “their votes have been completely nullified.” Id. at 2665 (quoting Raines, 521 U.S. at 823). As the Court explained, “[o]ur conclusion that the Arizona Legislature has standing fits [within Coleman]” because the ballot initiative “together with the Arizona Constitution’s ban on efforts to undermine the purposes of an initiative” would “‘completely nullif[y]’ any vote by the Legislature, now or ‘in the future,’ purporting to adopt a redistricting plan.” Id. at 2667 (quoting Raines, 521 U.S. at 823-24). The Court distinguished Raines on
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the grounds that Raines had not been brought by an institutional plaintiff: “The Arizona Legislature, in contrast, is an institutional plaintiff asserting an institutional injury, and it commenced this action after authorizing votes in both of its chambers. That ‘different . . . circumstanc[e],’ was not sub judice in Raines.” Id. at 2664 (citation omitted). The Court also noted that the case before it “does not touch or concern the question whether Congress has standing to bring a suit against the President . . . which would raise separation of powers concerns absent here.” Id. at 2665 n.12.
* * * * *
In sum, Raines teaches that when a suit is brought by an individual Member of Congress, the member can allege either a personal injury or an institutional injury. If the injury is personal, standing is present when the injury arises out of something to which the member is personally entitled, such as the salary associated with his or her seat. As to an institutional injury, the Court has recognized standing when a legislator’s vote has been completely nullified. The Supreme Court has upheld legislator standing based on a vote nullification claim in two instances. In Coleman, a bloc of individual state “legislators whose votes would have been
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sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Raines, 521 U.S. at 823 (footnote omitted). In Arizona State Legislature, the legislature, as an institutional plaintiff authorizing the lawsuit, had standing to sue based on the alleged nullification of their votes “now” or “in the future” as a result of a ballot initiative. 135 S. Ct. at 2667. Although neither of these cases implicated federal separation-of-powers concerns, the Raines Court specifically declined to hold that Coleman would be inapplicable “to a similar suit brought by federal legislators.” Raines, 521 U.S. at 824 n.8.
Raines also teaches that it is not necessary for an institutional claim to be brought by or on behalf of the institution. Id. at 829 (“We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.”). Indeed, in Coleman, the claim was not brought on behalf of the state senate as an institutional plaintiff, but rather by a bloc of individual legislators who had voted not to ratify the constitutional amendment. 307 U.S. at 436. Finally, by not overruling Coleman, the Raines Court suggests that vote nullification is an
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institutional injury that is personal, although not in the sense that the injury in Powell was personal, to the legislators entitled to cast the vote that has been nullified.
Regarding the separation-of-powers concerns implicated by an inter-branch suit, Raines instructs the Court to consider whether there is a lack of a historical practice of lawsuits being filed “on the basis of claimed injury to official authority or power” as a result of analogous confrontations between the Legislative and Executive Branches of the federal government. Raines, 521 U.S. at 826. Raines also instructs the Court to consider whether there is an adequate legislative remedy and whether another plaintiff could bring the case. Id.
c. D.C. Circuit Precedent The Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has applied Raines twice, each time finding legislator standing to be foreclosed.6 In Chenoweth v. Clinton, four members of Congress sued the President and another
6 Because the Court has determined that plaintiffs have standing to bring their claims pursuant to Raines and subsequent D.C. Circuit precedent, it need not address the parties’ arguments regarding pre-Raines D.C. Circuit authority. At oral argument, the Court questioned plaintiffs about their reliance on preRaines D.C. Circuit authority, given that Raines called into question portions of that authority. See Chenoweth, 181 F.3d 112, 115 (D.C. Cir. 1999). In response, plaintiffs clarified their reliance on Raines and post-Raines D.C. Circuit precedent for the proposition that they have standing based on their vote nullification claim. Hr’g Tr., ECF No. 54 at 20:22-24.
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Executive Branch official to enjoin the implementation of the American Heritage Rivers Initiative (“AHRI”), a program President Clinton created by Executive Order. 181 F.3d 112, 112 (D.C. Cir. 1999). After President Clinton announced his intention to create the AHRI, three of the four plaintiffs introduced a bill to end the program, but it never came to a vote. Id. at 113. Plaintiffs then sued, alleging that the President’s creation of the program by Executive Order “deprived [the plaintiffs] of their constitutionally guaranteed responsibility of open debate and vote on issues and legislation involving interstate commerce, federal lands, the expenditure of federal monies, and implementation of the [National Environmental Policy Act].” Id. (citing Compl.). Applying Raines, the Court held that the plaintiffs lacked standing because the injury they alleged was “a dilution of their authority as legislators,” which was “identical to the injury the Court in Raines deprecated as ‘widely dispersed’ and ‘abstract.’” Id. at 115 (no citation for internal quotation in original). The Court reasoned that “[i]f, as the Court held in Raines, a statute that allegedly ‘divests [congressmen] of their constitutional role’ in the legislative process does not give them standing to sue, then neither does an Executive Order that allegedly deprives congressmen of their ‘right[] to participate and vote on legislation in a manner defined by the
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Constitution.’” Id. (citation omitted). A central element of the
Court’s reasoning was that “[i]t [was] uncontested that the Congress could terminate the AHRI were a sufficient number in
each House so inclined.” Id. at 116. In view of the Supreme Court’s decision in Raines, the
Court considered whether its earlier ruling in Kennedy v. Sampson survived. Id. at 116-17 (discussing Kennedy v. Sampson,
511 F.2d 430 (D.C. Cir. 1974)). In Kennedy, the Court held,
partially relying on the pre-Raines understanding of Coleman, that an individual Senator had standing to challenge a
Presidential pocket veto. Kennedy, 511 F.2d at 433-35. Noting that Raines narrowed the Coleman holding, the Court stated that
Kennedy may nonetheless remain good law: Even under this narrow interpretation, one could argue that the plaintiff in Kennedy had standing. The pocket veto challenged in that case had made ineffective a bill that both houses of the Congress had approved. Because it was the President’s veto—not a lack of legislative support—that prevented the bill from becoming law (either directly or by the Congress voting to override the President’s veto), those in the majority could plausibly describe the President’s action as a complete nullification of their votes.
Chenoweth, 181 F.3d. at 116-17 (emphasis added). The Court
distinguished the claims before it from Coleman on the ground that plaintiffs “do not allege that the necessary majorities in
Congress voted to block the AHRI. Unlike the plaintiffs in
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Kennedy and Coleman, therefore, they cannot claim their votes were effectively nullified by the machinations of the Executive.” Id. at 117.
In the second post-Raines case considered, Campbell v. Clinton, thirty-one Members of Congress sued President Clinton, alleging that he violated the War Powers Resolution and the War Powers Clause of the Constitution by directing the participation of U.S. forces in Yugoslavia. 203 F.3d 19, 19 (D.C. Cir. 2010). A month after President Clinton announced that participation, Congress voted on four resolutions related to the conflict: (1) a declaration of war was defeated 427 to 2; (2) an “authorization” of the air strikes was defeated 213 to 213; (3) a resolution that would have required the President to end U.S. participation in the operation was defeated; and (4) funding for involvement in the operation was approved. Id. at 20. Plaintiffs claimed that they fit within the “Coleman exception to the Raines rule” by filing suit after having “defeat[ed] the War Powers Resolution authorization by a tie vote.” Id. at 22. The Court found neither of their claims to be analogous to the nullification that occurred in Coleman, which the Court understood “to mean treating a vote that did not pass as if it had, or vice versa.” Id. at 22. In Coleman, “state officials endorsed a defeated ratification, treating it as approved, while the President here did not claim to be acting
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pursuant to the defeated declaration of war or a statutory
authorization, but instead ‘pursuant to [his] constitutional
authority to conduct U.S. foreign relations and as Commander-in-
Chief and Chief Executive.’” Id. at 22 (discussing Coleman v.
Miller, 307 U.S. 433 (1939) and quoting Letter to Congressional
Leaders Reporting on Airstrikes Against Serbian Targets in the
Federal Republic of Yugoslavia (Serbia and Montenegro), 35
Weekly Comp. Pres. Doc. 528 (Mar. 26, 1999)). The Court reasoned
that plaintiffs’ argument based on the War Powers Resolution,
“although cast in terms of the nullification of a recent vote,
essentially is that the President violated the . . . War Powers
Resolution” and their argument based on the War Powers Clause
“is that the President has acted illegally-in excess of his
authority-because he waged war in a constitutional sense without
a congressional delegation.” Id. Regarding the Raines Court’s
use of the word “nullification,” the Court stated:
We think the key to understanding the Court’s treatment of Coleman and its use of the word nullification is its implicit recognition that a ratification vote on a constitutional amendment is an unusual situation. It is not at all clear whether once the amendment was “deemed ratified,” see Raines, 521 U.S. at 822, the Kansas Senate could have done anything to reverse that position. We think that must be what the Supreme Court implied when it said the Raines plaintiffs could not allege that the “[Line Item Veto Act] would nullify their votes in the future,” and that, after all, a majority of senators and congressmen could always repeal the Line Item
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Veto Act. Id. at 824 (emphasis added). The Coleman senators, by contrast, may well have been powerless to rescind a ratification of a constitutional amendment that they claimed had been defeated. In other words, they had no legislative remedy.
Id. at 22-23 (quoting Raines, 521 U.S. at 824) (footnote omitted). Applying Raines, the Court held that the plaintiffs lacked standing under “the Coleman exception” because they had “ample legislative power to have stopped prosecution of the ‘war’” despite having lost the vote on the War Powers Resolution authorization. Id. at 23 (no citation for internal quotation in original). Therefore, despite the tie vote, the Campbell plaintiffs had legislative remedies at their disposal, unlike the situation in Coleman.
* * * * *
In sum, D.C. Circuit precedent teaches that individual Members of Congress do not have standing to sue the Executive Branch when their institutional injury is such that they can obtain their remedy in Congress. In Campbell, the Court understood vote nullification “to mean treating a vote that did not pass as if it had, or vice versa.” Campbell, 203 F.3d at 22. In Chenoweth, the Court suggested that notwithstanding Raines, a single Member of Congress could have standing to sue based on a
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vote nullification claim when it was the President’s action,
rather than “a lack of legislative support,” that nullified the
Member’s vote. Chenoweth, 181 F.3d at 117. Such a situation is
therefore a third instance of a type of vote nullification for
which a legislator could have standing.7
2. Plaintiffs Adequately Allege a Judicially Cognizable Injury
a. Injury-in-Fact
To establish that they have an injury-in-fact, plaintiffs
must allege that their injury is “personal, particularized,
concrete, and otherwise judicially cognizable.” Raines, 521 U.S.
at 820. Regarding the requirement that the injury be “legally
and judicially cognizable,” “the plaintiff [must allege to] have
suffered ‘an invasion of a legally protected interest which is .
7 The closest constitutional analogy to plaintiffs’ claims here is that in Kucinich v. Bush. 236 F. Supp. 2d 1 (D.D.C. 2002). In that case, thirty-two Members of the House of Representatives “challenged President Bush’s unilateral withdrawal from the 1972 Anti-Ballistic Missile Treaty . . . without the approval of Congress,” contending that President Bush was required to obtain their consent before terminating a treaty. Id. at 1. Applying Raines, Chenoweth, and Campbell, the Court held plaintiffs did not have standing because their “claim of a ‘grievous institutional injury’ where they are ‘deprived of their constitutional right . . . to participate in treaty termination’ was no different from the institutional injuries alleged in Chenoweth, Campbell, and Raines.” Id. at 9. The Court did not discuss whether the plaintiffs’ votes had been nullified. In any event, the Court also concluded that the plaintiffs’ raised a nonjusticiable political question. Id. The President has not argued that the claims here involve nonjusticiable political questions. Therefore, this persuasive authority is inapposite.
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. . concrete and particularized’ Lujan, 504 U.S. at 560, and that the dispute is ‘traditionally thought to be capable of resolution through the judicial process.’” Id. at 819 (quoting Flast, 392 U.S. at 97).
b. Plaintiffs Adequately Allege an Institutional Injury
In the context of legislator standing, the Supreme Court has recognized at least one type of institutional injury for which legislators may have standing to sue: complete vote nullification. Coleman, 307 U.S. at 438; Raines, 521 U.S. at 821-23; Ariz. State Legislature, 135 S. Ct. at 2667; Cummings v. Murphy, No. 17-2308, slip op. at 18 (D.D.C. Aug. 14, 2018) (“[c]omplete vote nullification is clearly a type of institutional injury sufficient to support legislator standing”). Since an institutional injury will “necessarily damage all Members of Congress and both Houses of Congress equally,” Raines, 521 U.S. at 821, it will not be a personal injury in the sense that the injury in Powell was personal. If institutional injuries were incapable of also being personal to individual members of the institution, however, the Court in Raines would have overruled Coleman. Id. at 819 (“We have consistently stressed that a plaintiff’s complaint must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury suffered is particularized as to
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him.”). Instead, the Supreme Court reaffirmed Coleman in both Raines, id. at 821, and Arizona State Legislature, 135 S. Ct. at 2665, necessarily holding that the institutional injury alleged –vote nullification–was sufficiently personal to each of the individual plaintiffs to satisfy the standing requirement under Article III.
The Clause requires the President to ask Congress before accepting a prohibited foreign emolument. Accepting the allegations in the Complaint as true, which the Court must at this juncture, the President is accepting prohibited foreign emoluments without asking and without receiving a favorable reply from Congress. The “nature and source of the claim,” Warth, 422 U.S. at 500, is an unusual8 constitutional provision which unambiguously prohibits the President from accepting any emolument from “any King, Prince or foreign State” unless Congress chooses to permit an exception. U.S. Const. art. I, § 9, cl. 8; 17 Op. O.L.C. 114, 121 (1993). The specific facts alleged are that the President has accepted, and intends to continue accepting, prohibited foreign emoluments without seeking congressional consent. Am. Compl., ECF No. 14 ¶¶ 4, 37, 39, 40, 77, 78, 79. Furthermore, the President has not provided
8 The only similar provision is the Article II requirement that the President obtain the advice and consent of Congress prior to taking covered executive branch action. U.S. Const. art. II, § 2, cl. 2.
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any information to Congress about any foreign emoluments he has received. Id. ¶¶ 41, 80. The President is depriving plaintiffs of the opportunity to give or withhold their consent, thereby injuring them “in their roles as members of Congress.” Id. ¶ 5. Specifically, the President has neither sought plaintiffs’ consent prior to accepting prohibited foreign emoluments, nor provided any information to Congress about them, thereby preventing plaintiffs from “exercis[ing] their constitutional prerogative to authorize or reject the specific emoluments he is accepting.” Id. ¶ 41. Plaintiffs adequately allege that the President has completely nullified their votes in the past because he has accepted prohibited foreign emoluments as though Congress had provided its consent. And he will completely nullify their votes in the future for the same reason, as plaintiffs allege that he intends to continue this practice. The President’s alleged acceptance of prohibited foreign emoluments as though Congress provided consent is indistinguishable from “treating a vote that did not pass as if it had, or vice versa.” Campbell, 203 F.3d at 22. And, as soon as the President accepts a prohibited foreign emolument without obtaining congressional consent, his acceptance is irreversible. Id. at 22-23. Accordingly, plaintiffs adequately allege that the President has completely nullified their votes.
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Although plaintiffs do not sue on behalf of Congress, but rather in their individual official capacities as Members of Congress, their ability to bring this suit is not foreclosed by Supreme Court and D.C. Circuit precedent. The Raines Court did not hold that it would be necessary for an institutional claim to be brought by or on behalf of the institution. Raines, 521 U.S. at 829. Rather, the fact that the case had not been authorized by the institution was a relevant consideration, but not dispositive, in determining that the Raines plaintiffs lacked standing. Id. Moreover, the claim in Coleman was not brought on behalf of the state senate as an institutional plaintiff, but rather by a bloc of individual members who had voted not to ratify the constitutional amendment. Coleman, 307 U.S. at 438. The Supreme Court distinguished Raines from Arizona State Legislature because the latter was brought by the legislature as an institution, Ariz. State Legislature, 135 S. Ct. at 2664, but in finding the legislature to have standing, the Supreme Court did not hold that an institutional claim may be brought only by the institution. See generally id. Furthermore, notwithstanding Raines, a single Member of Congress could have standing to sue based on a vote nullification claim when it was the President’s action, rather than “a lack of legislative support,” that nullified the Member’s vote. Chenoweth, 181 F.3d at 117.
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i. The President Misstates the Injury The President acknowledges that “when a legislative vote is deemed defeated by executive action,” the legislator has standing to sue unless there is a legislative remedy. Mot. to Dismiss, ECF No. 15-1 at 17. Although he disputes that plaintiffs’ votes have been “defeated by executive action,” his argument relies on a misstatement of the alleged injury. The President contends that plaintiffs cannot plausibly allege that he has prevented votes from being taken on the emoluments bills pending before Congress,9 or that he has prevented Congress from otherwise voting on the emoluments issue. Id. at 24, 26. He also emphasizes that Congress may still choose to vote on the pending bills or on bills introduced in the future. Id. at 26. However, the votes contemplated by the President are not votes to consent, or not, in response to the President’s request for consent prior to his acceptance of a prohibited foreign emolument. Rather, these are votes on the issue of emoluments. Injury to their power to legislate on the issue of emoluments is not the injury plaintiffs allege. See generally Am. Compl., ECF No. 14. To be clear, plaintiffs’ alleged injury is caused by the
9 See S. Con. Res. 8, 115th Cong. (2017) (among other things, declaring the President’s dealings through his companies with foreign governments to be potential violations of the emoluments clause); H.R.J. Res. 16, 115th Cong. (2017) (denying congressional consent for the President to accept any foreign emolument during his Presidency).
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President’s alleged refusal to give them the opportunity to
exercise their constitutional right to vote on whether to
consent prior to his acceptance of prohibited foreign
emoluments. It is irrelevant that Congress can express its
consent through legislation on the issue of emoluments or that
it has done so in the past on limited occasions.10 In the absence
of such legislation, the President deprives plaintiffs of the
opportunity to vote every time he accepts an emolument from “any
King, Prince, or foreign State” without the consent of Congress.
U.S. Const. art. I, § 9, cl. 8.11
ii. The President Reads the Precedent too Narrowly
According to the President, a Court may conclude that
plaintiffs have standing for a vote nullification claim only
when they can “allege that ‘the necessary majorities in the
Congress voted’ to withhold consent to the President’s alleged
10 See Foreign Gifts and Decorations Act of 1966, 5 U.S.C. § 7342. 11 Similarly, the President argues that unlike the situation in Coleman, there is nothing that is “unusual” or “irreversible” here because Congress may choose to vote on “the emoluments issue” in the future. Mot. to Dismiss, ECF No. 15-1 at 26; Reply, ECF No. 28 at 14. Again, the President’s argument relies on the same misstatement of the alleged injury. Moreover, each time the President accepts prohibited foreign emoluments without the consent of Congress, that acceptance without consent is irreversible. Finally, although not “unusual” in the sense that word was used in Coleman, the President’s failure to comply with the Clause is highly unusual given that prior Presidents have ensured that their actions were consistent with the Clause. See supra Section IV.B.
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acceptance of prohibited foreign emoluments.” Mot. to Dismiss, ECF No. 15-1 at 25 (quoting Chenoweth, 181 F.3d at 117). As an initial matter, again the President has misstated the injury. Moreover, the Court disagrees with this narrow reading of Coleman. Although the Raines Court narrowed the Coleman holding, the Court neither held nor implied that the only type of vote nullification claim for which a legislator would have standing would be “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act . . . if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Raines, 521 U.S. at 823. Indeed, following Raines, the Supreme Court recognized that the Arizona State Legislature as an institutional plaintiff had standing to bring a vote nullification claim. See Ariz. State Legislature, 135 S. Ct. at 2667. The legislature there did not allege that it had the “necessary majorities” to take action; rather the claimed injury was that the ballot initiative deprived the plaintiff of a legislative “prerogative.” Id. at 2663. The D.C. Circuit has emphasized that the Coleman exception is a “narrow rule,” Chenoweth, 181 F.3d at 116; see Campbell, 203 F.3d at 22-23, and has interpreted the Coleman exception “to mean treating a vote that did not pass as if it had, or vice versa,” Campbell, 203 F.3d at 22. As the Court has explained, supra Section IV.C.2.b,
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here the President has allegedly accepted prohibited foreign emoluments as though Congress has provided its consent, which is indistinguishable from “treating a vote that did not pass as if it had, or vice versa.”12 Id.
The President insists that upholding standing here would require a “drastic extension of Coleman,” which the Supreme Court in Raines rejected. Mot. to Dismiss, ECF No. 15-1 at 25. The Court disagrees. Raines would have required a drastic extension of Coleman because the nature of the vote nullification in Coleman was different from the “abstract dilution of legislative power” alleged in Raines. Raines, 521 U.S. at 826. And critically, the Raines plaintiffs had adequate legislative remedies at their disposal. Id. at 824. Here, by contrast, the President’s complete nullification of plaintiffs’ votes is entirely different from the “abstract dilution of legislative power” alleged in Raines. Id. at 826. And as will be explained in detail, plaintiffs have no adequate legislative remedies. See infra Section IV.C.4.
12 For the same reason, the Court rejects the President’s argument that plaintiffs’ reliance on the vote nullification theory articulated in Coleman is misplaced to the extent they claim their injury encompasses being deprived of the option of not voting because none of the precedent recognizes such an injury. Reply, ECF No. 28 at 17.
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c. Plaintiffs’ Alleged Injury is Personal, Particularized and Concrete
Plaintiffs allege that the President has accepted, and intends to continue accepting, prohibited foreign emoluments without seeking congressional consent, thereby depriving them of the opportunity to vote on whether to consent to his acceptance of emoluments before he accepts them. Am. Compl., ECF No. 14 ¶¶ 3-4. Plaintiffs’ injury is to a “legally protected interest” because the Clause prohibits the President from accepting “any” emolument from “any King, Prince, or foreign State” without the consent of Congress. U.S Const. art. I, § 9, cl. 8. Consent is obtained through the aggregate of the specific votes that each individual Member of Congress is entitled to take. Id. art. I, § 1; art. I, § 3, cl. 1; art. I, § 5, cl. 3. Although this injury is dispersed among all Members of Congress, as will necessarily be the case when an institutional injury is alleged, this does not render the injury less concrete or particularized. See Raines, 521 U.S. at 821 (stating an institutional injury will “necessarily damage all Members of Congress and both Houses of Congress equally”); Ariz. State Legislature, 135 S. Ct. at 2664 (Plaintiff “is an institutional plaintiff asserting an institutional injury”). Rather, each time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and
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particularized injury—the deprivation of the right to vote on whether to consent to the President’s acceptance of the prohibited foreign emolument—before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified. See Raines, 521 U.S. at 823 (narrowing but not overruling the holding in Coleman); Ariz. State Legislature, 135 S. Ct. at 2664-65 (holding that the legislature has standing to sue); supra Section IV.C.2.b. Accordingly, plaintiffs adequately allege that they “have suffered ‘an invasion of a legally protected interest which is . . . [personal,] concrete and particularized.’” Raines, 521 U.S. at 819 (quoting Lujan, 504 U.S. at 560).
The President argues that the injury alleged here is insufficiently concrete to give the plaintiffs a “personal stake in the dispute” because the injury “damages all Members of Congress and both Houses of Congress equally.” Reply, ECF No. 28 at 10 (quoting Raines, 521 U.S. at 821, 830). Furthermore, according to the President, the alleged injury cannot support Article III standing because it is felt equally by all Members of Congress “solely because they are Members of Congress,” as distinct from the personal injury alleged in Powell. Reply, ECF No. 28 at 11 (quoting Raines, 521 U.S. at 821). The Court disagrees. The Raines Court recognized two types of injuries
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that could support legislator standing: (1) a personal injury such as that typified in Powell; and (2) an institutional injury—vote nullification—such as that in Coleman. Raines, 521 U.S. at 829-30. An institutional injury will “necessarily damage all Members of Congress and both Houses of Congress equally” and will be felt equally by Members of Congress “solely because they are Members of Congress.” Id. at 821. And as explained, supra at 30-31, by reaffirming Coleman in Raines and Arizona State Legislature, the Supreme Court necessarily held that the institutional injury alleged was sufficiently personal to each of the plaintiffs to satisfy the standing requirement under Article III.
i. Plaintiffs’ Alleged Injury is Distinguishable from the Injuries Alleged in the Precedent
The President argues that plaintiffs’ claims are squarely foreclosed by Raines. The Court disagrees. As an initial matter, the President reads Raines to establish “a foundational principle that the denial of institutional legislative prerogative is not a judicially cognizable injury.” Mot. to Dismiss, ECF No. 15-1 at 16. This broad principle, however, is not supported by Raines. Raines establishes that legislators may have standing based on the nullification of their votes, which is an institutional, as opposed to a personal, injury. Raines, 521 U.S. at 821-23. To establish the broad principle asserted by
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the President, the Raines Court would have needed to overrule Coleman. Not only did the Raines Court not overrule Coleman, but the Court also relied on Coleman to uphold standing in Arizona State Legislature, in which the alleged injury was deprivation of a legislative prerogative. Ariz. State Legislature, 135 S. Ct. at 2663.
The President argues that the injury alleged here amounts only to a “dilution of institutional legislative power.” Mot. to Dismiss, ECF No. 15-1 at 22 (quoting Raines, 521 U.S. at 820). Moreover, according to the President, there is little difference between the claim in Raines and the claim here because the members in Raines argued that the challenged Act “deprived them of ‘their constitutional role in the repeal of legislation’” which “does not differ materially from Plaintiffs’ claim that they have been denied their constitutional role in deciding whether to consent to the President’s acceptance of allegedly prohibited foreign emoluments,” Reply, ECF No. 28 at 10-11 (quoting Raines, 521 U.S. at 816). In so arguing, the President insists that plaintiffs’ claimed injury is indistinguishable from the claimed injury in Chenoweth. Mot. to Dismiss, ECF No. 15-1 at 23-24. The Court disagrees. The injury alleged here is distinguishable from those alleged in Raines and Chenoweth. In Raines, plaintiffs sued after being on the losing side of the vote that enacted the Line Item Veto Act, alleging that their
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injury was the diminution of legislative power caused by the Act. Raines, 521 U.S. at 814. In Chenoweth, plaintiffs sued after their bill seeking to end a program created by the President by Executive Order failed to be brought to a vote, alleging that their injury was that Members of Congress had been deprived of their right to vote on the Presidentially-created program. Chenoweth, 181 F.3d at 112. In each case, plaintiffs either lost the vote in Congress or did not have the political influence to bring their bill to a vote, and then sought relief in the courts. Here, by contrast, plaintiffs’ alleged injury is caused by the President’s alleged acceptance of prohibited foreign emoluments before seeking and obtaining congressional consent, not by any action taken or not taken by their congressional colleagues. See Chenoweth, 181 F.3d at 117 (“it was the President’s veto—not a lack of legislative support—that prevented the bill from becoming a law”); infra Section IV.C.3.a. The President’s repeated misstatement of the injury does not change the nature of plaintiffs’ alleged injury. Finally, the President’s alleged acceptance of a prohibited foreign emolument before obtaining congressional consent does not “dilute” plaintiffs’ legislative power because they do not allege injury to their ability to legislate on the issue of emoluments.
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3. Separation-of-Powers Considerations a. Plaintiffs Lack Adequate Legislative Remedies
The Court does agree with the President that, “when legislators possess ‘political tools with which to remedy their purported injury,’ they may not seek the aid of the Judiciary.” Mot. to Dismiss, ECF No. 15-1 at 26 (quoting Campbell, 203 F.3d at 23-24). But here, plaintiffs lack such tools.
In addition to Congress bringing the bills currently pending to a vote, see supra Section IV.C.2.b.i, the President suggests that the following types of legislation would provide plaintiffs with a legislative remedy: (1) voting on whether what plaintiffs allege “constitute[s] violations of the Foreign Emoluments Clause by the President and whether Congress should provide its consent,” Mot. to Dismiss, ECF No. 15-1 at 2; (2) “vot[ing] on a private bill[13] consenting to the receipt of what it construed to be emoluments received from foreign governments or a joint resolution expressing its disagreement with such receipt,” id. at 24; and/or (3) “vot[ing] on a joint
13 A private bill is legislation that addresses a matter of narrow interest, which after being passed in identical form by the House and Senate, is submitted to the President for signature. United States Senate, Bills and Resolutions, Legislation, Laws and Acts, available at https://www.senate.gov/pagelayout/legislative/d_three_sections_w ith_teasers/bills.htm.
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resolution[14] that provides what Congress perceives to be the proper definition of an emolument and prohibits any and all emoluments, including ones unknown to Congress,” Reply, ECF No. 28 at 18. According to this argument, plaintiffs have ample legislative remedies at their disposal; they just don’t have the votes.
The President’s purported legislative remedies are clearly inadequate within the meaning of Raines. Raines, 521 U.S. at 829 (legislative remedy must be an “adequate” remedy). In Raines, Chenoweth, and Campbell, adequate legislative remedies were available to redress the plaintiffs’ grievances. In Raines, “a majority of Senators and Congressmen c[ould] pass or reject appropriations bills; the Act has no effect on this process. Moreover, a majority of Senators and Congressmen c[ould] vote to repeal the Act, or to exempt a given appropriations bill (or a given provision in an appropriations bill) from the Act; again, the Act has no effect on this process.” Id. at 824. In Chenoweth, “[i]t [was] uncontested that the Congress could
14 A joint resolution, with one exception, is legislation that requires the approval of both the House and Senate and is submitted to the President for signature. The exception is when the joint resolution proposes a constitutional amendment. United States Senate, Bills and Resolutions, Legislation, Laws and Acts, available at https://www.senate.gov/pagelayout/legislative/d_three_sections_w ith_teasers/bills.htm.
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terminate the AHRI were a sufficient number in each House so inclined.” Chenoweth, 181 F.3d at 116. And in Campbell, “Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign.” Campbell, 203 F.3d at 23.15
Here, by contrast, legislation on the emoluments issue does not provide an adequate remedy. First, in asking this Court to accept the proposition that legislation on the emoluments issue would be an adequate remedy, the President asks this Court to ignore this constitutional Clause. The Court may not do so. See Marbury, 1 Cranch at 174 (“It cannot be presumed that any clause in the constitution is intended to be without effect . . . .”). The Clause is unambiguous: acceptance is prohibited without “Consent.” U.S Const. art. I, § 9, cl. 8. The Clause therefore places the burden on the President to convince a majority of Members of Congress to consent. The legislation suggested by the President flips this burden, placing the burden on Members of Congress to convince a majority of their colleagues to enact the suggested legislation. This is not what the Clause requires.
15 The President disputes that the precedent requires “political remedies [to] put the plaintiff members back in the same position as if the Executive had not caused the alleged injury in the first place.” Reply, ECF No. 28 at 17. This is beside the point because in each case, there was an adequate legislative remedy, whereas here there is none.
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Second, the President does not explain why such legislation, assuming he signed it, would prevent him from accepting prohibited foreign emoluments. His failure to explain is especially problematic given that the Constitution itself has not prevented him from allegedly accepting them. Third, the President does not explain how the proposed legislation would be adequate in view of the allegation that the President has not provided any information to Congress about the prohibited foreign emoluments he has received, and that he does not intend to change this practice. Am. Compl., ECF No. 14 ¶¶ 40, 41. Legislating after Congress happens to learn about his acceptance of a prohibited foreign emolument through news reports is clearly an inadequate remedy. Fourth, legislation disagreeing with the President’s acceptance of prohibited foreign emoluments does not provide a remedy for him already having allegedly accepted them without seeking and obtaining consent. Finally, legislation would neither prevent the President from accepting future prohibited foreign emoluments, nor force him to return those he has already accepted.
Furthermore, and in contrast to the situation in Chenoweth and Campbell, Congress’ appropriations power cannot be used to obtain a legislative remedy, such as refusing to appropriate funds for an Executive Branch program or for participation in a war, because there are no federal appropriations associated with
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the President’s receipt of prohibited foreign emoluments. This is another aspect of the Clause that makes it unusual. The President suggests that among plaintiffs’ legislative remedies is the use of Congress’ appropriations power to retaliate against him for his alleged acceptance of prohibited foreign emoluments by “tak[ing] action on matters not directly related to emoluments.” Reply, ECF No. 28 at 18. Courts have treated Congress’ use of its appropriations power as a legislative remedy in situations in which failing to provide funding could actually resolve the dispute. See, e.g., Campbell, 203 F.3d at 23 (“Congress always retains appropriations authority and could have cut off funds for the American role in the conflict.”). Here, however, Congress lacks a “broad range of legislative authority it can use to stop” the President from failing to seek consent before accepting prohibited foreign emoluments. Campbell, 203 F.3d at 24 (noting that where “Congress has a broad range of legislative authority it can use to stop a President’s” action, Congress cannot mount a challenge to that action pursuant to Raines).
Finally, the availability of the extreme measure of impeachment, see Campbell, 203 F.3d at 23 (noting that “there always remains the possibility of impeachment should a President act in disregard of Congress’ authority”), to enforce the President’s compliance with the Clause is not an adequate remedy
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within the meaning of Raines. Cf. Nat’l Treasury Emp. Union v.
Nixon, 492 F.2d 587, 615 (D.C. Cir. 1974) (“the Constitution
should not be construed so as to paint this nation into a corner
which leaves available only the use of the impeachment process
to enforce the performance of a perfunctory duty by the
President”). b. Capable of Resolution Through the Judicial Process
Raines also instructs the Court to consider whether “the
dispute is ‘traditionally thought to be capable of resolution
through the judicial process.’” Raines, 521 U.S. at 819 (quoting
Flast, 392 U.S. at 97). The President argues that it is not because “every[16] confrontation between one or both Houses of
Congress and the Executive Branch has been resolved through the
political process rather than through suits brought by
legislators.” Reply, ECF No. 28 at 10 (citing Raines, 521 U.S.
at 826). Plaintiffs respond that the Raines Court discussed the
novelty of litigation between the legislative and executive
16 Again, the President has overstated the proposition. What the Raines Court said was “in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power.” Raines, 521 U.S. at 826 (emphasis added). In Kennedy v. Sampson, the D.C. Circuit held that Senator Kennedy had standing to bring the suit and the Court issued a declaratory judgment ruling that the President’s failure to take action on the bill at issue did not result in a pocket veto, but instead the bill became law. 511 F.2d at 442. Such suits are therefore not nonexistent.
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branches, noting that it “appear[ed]” to argue against the plaintiffs, but did not elaborate further. Pls.’ Opp’n, ECF No. 17 at 20.
The Raines Court’s examples of analogous confrontations between Congress and the Executive Branch are distinguishable from the situation here. In Raines, the Court discussed at length the fact that no President sued to challenge the constitutionality of the Tenure of Office Act. Raines, 521 U.S. at 826. That Act, which required the consent of the Senate for the President to remove an official whose appointment to the Executive Branch required Senate confirmation, was passed in 1867 and repealed in 1887. Id. The Raines Court stated that if federal courts had become involved, “they would have been improperly and unnecessarily plunged into the bitter political battle being waged between the President and Congress” over the Act. Id. at 827. Here, there is no “bitter political battle” between the President and Congress over the constitutionality of an Act passed, and ultimately repealed, by Congress that impinged on the President’s appointments authority. Id.
Two of the other three examples cited by the Raines Court involved constitutional challenges to legislation that impermissibly altered the power of the Legislative or Executive Branch, but where the claim was not brought by one branch against the other. See INS v. Chadha, 462 U.S. 919, 959
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(1983)(holding the one House congressional veto provision in Section 244(1)(2) of the Immigration and Nationality Act to be unconstitutional); Buckley v. Valeo, 424 U.S. 1, 140 (1976) (holding the provisions of the then-existing Federal Election Campaign Act of 1971 that “vest[ed] in the [Federal Election] Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate[d] Art. II, § 2, cl., 2, of the Constitution.”). These cases are distinguishable because here, plaintiffs do not allege that their injury has been caused by a similar type of legislation passed by Congress and signed into law by the President. Furthermore, there is no legislative remedy. In the final example, the Supreme Court held that a bill that was presented to the President less than ten days before a congressional session was adjourned did not become law when the President “neither signed the bill nor returned it to the Senate” in a challenge brought by certain Native American Tribes. Okanogan, Methow, San Poelis (or San Poil), Nespelem, Colville, and Lake Indian Tribes or Bands of the State of Washington v. United States, 279 U.S. 655, 673, 691-92 (1929). This case is distinguishable for the same reasons—at issue there was the legal status of a bill that had been passed by both Houses of Congress and presented to the President less than ten days before the adjournment of the congressional session. The
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decision to do so had been made by Congress and could be remedied by Congress.
Similarly, this is not a situation in which plaintiffs disagree with the manner in which the President is administering or enforcing the law. See United States v. Windsor, 570 U.S. 744, 789 (2013) (Scalia, J. dissenting) (Ours is not a “system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President . . . implements a law in a manner that is not to Congress’ liking.”). Neither is it the situation in Raines where the Court rejected the plaintiffs’ ability to sue the President over the exercise of a statutory provision they believed to be unconstitutional. Raines, 521 U.S. at 830. Furthermore, although historical practice militates against Members of Congress turning to the Courts to resolve a dispute for which there is a legislative resolution, as explained supra Section IV.C.3.a, there is no adequate legislative remedy here.
This case does not raise the concern that the Court, in exercising jurisdiction over plaintiffs’ claims, would be engaging in some kind of “amorphous general supervision of the operations of government.” Id. at 826 (quoting Richardson, 418 U.S. at 194 (Powell, J., concurring)). Rather, this dispute raises concrete legal questions that are within the purview of the federal courts to adjudicate: (1) what is an emolument;
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(2) what does it mean to accept an emolument; and (3) whether the President has violated the Foreign Emoluments Clause. The President contends that “Congress is far better equipped than the courts to assess whether particular arrangements violate the Foreign Emoluments Clause, and if so, how best to address the violation.” Reply, ECF No. 28 at 18. While Congress clearly has the power to legislate on the issue of emoluments, “it is ‘the duty of the judicial department’—in a separation-of-powers case as in any other—‘to say what the law is.’” N.L.R.B. v. Canning, 134 S. Ct. 2550, 2560 (2014) (quoting Marbury, 1 Cranch at 177). Therefore, it is the role of the Judiciary to “say what the law is” regarding the meaning of the Foreign Emoluments Clause and the President’s compliance with it. Cf. United States v. Nixon, 418 U.S. 683, 705 (1974) (“We therefore reaffirm that it is the province and duty of this Court ‘to say what the law is’ with respect to the claim of privilege asserted in this case.”) (quoting Marbury, 1 Cranch at 177). The President does not dispute the role of the courts in interpreting the Constitution, but rejects the proposition that judicial review is appropriate here because “Congress continues to possess effective tools that would serve as checks on the Executive.” Def.’s Suppl. Br. in Support of his Mot. to Dismiss and in Response to the Brs. of Amici Curiae (“Def.’s Suppl. Br.”), ECF No. 51 at 26-27. Nevertheless, as explained supra Section IV.C.3.a, there are no
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adequate legislative remedies here. Furthermore, unlike in Raines, the dispute here is neither
an “interbranch dispute about calibrating the legislative and executive powers [nor] is it an intrabranch dispute between segments of Congress itself,” either of which would counsel against judicial involvement based on separation-of-powers principles. Raines, 521 U.S. at 833 (Souter, J., concurring). Rather, this dispute is about the President’s alleged refusal to seek consent prior to his alleged acceptance of prohibited foreign emoluments that he receives as a result of his personal financial interests. The President has strenuously attempted to frame the dispute as “an intrabranch dispute between segments of Congress itself,” see Raines, 521 U.S. at 833 (Souter, J., concurring), but as the Court has thoroughly explained, supra Section IV.3.A, this characterization is incorrect.
Accordingly, although this case implicates separation-ofpowers concerns, finding standing here “keep[s] the Judiciary’s power within its proper constitutional sphere.” Raines, 521 U.S. at 820. As the Court has explained, plaintiffs’ claim of standing is not based on a “loss of political power,” see id. at 821, as was the case in Raines, because the injury alleged is not an injury to their power to legislate on the issue of emoluments. And since plaintiffs have no adequate legislative remedy, they appropriately seek relief in federal court. See
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Valley Forge Christian Coll., 454 U.S. at 473-74 (“exercis[ing] . . . judicial power has been recognized as a tool of last resort”).
4. The Ability of Another Plaintiff to Bring this Case Raines instructs the Court to consider whether another plaintiff could bring the case. Raines, 521 U.S. at 829 (noting that the Court’s holding did not foreclose a constitutional challenge by someone with standing). At oral argument, the Court asked counsel for the President a hypothetical question: Whether, if this case had been brought by Congress as an institutional plaintiff, counsel would agree that it would have standing. Hr’g Tr., ECF No. 54 at 71:2-6. The government refused to concede that it would. Id. at 71:7-25, 77:5-20. At the same time, counsel stated, “[j]ust because these plaintiffs don’t have standing, it doesn’t mean another plaintiff in a proper case might not have standing.” Id. at 76:2-3. When pressed by the Court about who that plaintiff would be, counsel conceded: “I have a hard time thinking through which plaintiff would be a proper plaintiff to enforce the Emoluments Clause.” Id. at 76:810. That no plaintiff would have standing to challenge the President’s alleged violation of the Clause is certainly consistent with the President’s argument that “when an official fails to first seek congressional consent before accepting emoluments prohibited by the Foreign Emoluments Clause, it only
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means that the official has violated the Clause, not that each Member of Congress automatically acquires a judicially cognizable personal stake to challenge the violation.” Def.’s Suppl. Br., ECF No. 51 at 11. The faulty premise underlying the President’s argument, however, is that there is a legislative remedy for violating the Clause. Hr’g Tr., ECF No. 54 at 79:1280:18.
The Court is aware of one existing17 challenge to the President’s receipt of prohibited foreign emoluments. However, that challenge seeks to remedy entirely different injuries: The District of Columbia alleges injuries to its quasi-sovereign interest and its proprietary interest, and the State of Maryland alleges injuries to its sovereign interests, quasi-sovereign interest and its proprietary interest. See District of Columbia v. Trump, 291 F. Supp. 3d 725, 735 (D. Md. 2018).
Accordingly, if these plaintiffs do not have standing to bring their claims to address their alleged injury, it is unlikely that another plaintiff would, rendering the Clause unenforceable against the President except via impeachment. As explained, supra at 45, impeachment is an inadequate remedy within the meaning of Raines.
17 Another challenge was dismissed for lack of standing. See Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y. 2017), appeal docketed, No. 18-474 (2d Cir. 2018).
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5. Traceability and Redressability “A plaintiff must allege a personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, 468 U.S. at 751. The President contends that “[p]laintiffs’ alleged injury is not traceable to the President: The President has not prevented Congress from voting on whether he may accept emoluments, and Plaintiffs remain free to convince their congressional colleagues to redress their alleged injury.” Reply, ECF No. 28 at 8. The Court disagrees. Again, the President has misstated the alleged injury. Moreover, this matter is before the Court on a motion to dismiss and the Court must take as true the facts that are alleged in the complaint. Plaintiffs’ well-pleaded complaint alleges that the President has accepted prohibited foreign emoluments without first seeking the consent of Congress. Am. Compl., ECF No. 14 ¶¶ 4-5. The alleged injury is therefore directly traceable to the President’s alleged failure to seek Congressional consent. Plaintiffs seek declaratory relief in the form of a declaratory judgment stating that the President is violating the Clause when he accepts emoluments from foreign states without first seeking the consent of Congress, and injunctive relief in the form of an order from the Court enjoining the President from accepting “any present, Emolument, Office, or Title, of any kind
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whatever” from a foreign state without obtaining “the Consent of Congress.” Id., ECF No. 14 ¶¶ 84-92. The President contends that the injunctive relief sought by plaintiffs is unconstitutional, Mot. to Dismiss, ECF No. 15-1 at 56-58; Reply, ECF No. 28 at 3134, but does not contest that injunctive relief, were it available, would redress plaintiffs’ injury, see generally Mot. to Dismiss, ECF No. 15-1; Reply, ECF No. 28. Whether injunctive relief is available here is a merits determination that the Court need not reach at this juncture, and the Court cannot assume, for the purposes of determining whether plaintiffs have standing, that injunctive relief would be unconstitutional. Because the President’s alleged violation of the Clause could be redressed by the declaratory and injunctive relief sought, plaintiffs have satisfied the redressability component of the standing inquiry. V. Conclusion
Accordingly, the Court finds that plaintiffs have standing to sue the President for allegedly violating the Foreign Emoluments Clause. The Court therefore DENIES IN PART the motion
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to dismiss and DEFERS ruling on the remaining arguments in the

motion to dismiss. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge September 28, 2018

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 Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 1 of 48

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________

)

Senator RICHARD BLUMENTHAL,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)Civil Action No. 17-1154 (EGS)

)

DONALD J. TRUMP, in his official )

capacity as President of the

)

United States,

)

)

Defendant.

)

_________________________________)

MEMORANDUM OPINION

I. Introduction

In its previous Opinion, the Court held that plaintiffs,

approximately 201 Members of the 535 Members of the United

States Senate and House of Representatives, had standing to sue

defendant Donald J. Trump in his official capacity as President

of the United States (“the President”) for alleged violations of

the Foreign Emoluments Clause (“the Clause”). See Blumenthal v.

Trump, 335 F. Supp. 3d 45, 72 (D.D.C. 2018) (“Blumenthal I”).

The President has moved to dismiss the Amended Complaint for

failure to state a claim because, inter alia, he contends that

“Emolument” should be narrowly construed to mean “profit arising

from an official’s services rendered pursuant to an office or

employ.” Def.’s Mot. to Dismiss (“Mot. to Dismiss”), ECF No. 15-

Case 1:17-cv-01154-EGS Document 67 Filed 04/30/19 Page 2 of 48
1 at 38.1 The President’s definition, however, disregards the ordinary meaning of the term as set forth in the vast majority of Founding-era dictionaries; is inconsistent with the text, structure, historical interpretation, adoption, and purpose of the Clause; and is contrary to Executive Branch practice over the course of many years.
Pursuant to the Clause, certain federal officials, including the President, shall not “accept” an “Emolument” from “any King, Prince, or foreign State” without “the Consent of the Congress.” U.S Const. art. I, § 9, cl. 8. In Count I, plaintiffs seek declaratory relief pursuant to 28 U.S.C. § 2201 in the form of a declaratory judgment stating that the President is violating the Clause when he accepts Emoluments from foreign states without first seeking the consent of Congress. Am. Compl., ECF No. 14 ¶¶ 85-86. In Count II, plaintiffs seek injunctive relief pursuant to the Court’s inherent authority to grant equitable relief and pursuant to 28 U.S.C. § 1331 in the form of a Court order enjoining the President from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of the Congress.” Id. ¶ 92.
1 When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document.
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In holding that plaintiffs had standing to sue the President in Blumenthal I, the Court deferred ruling on the remaining arguments in the President’s motion to dismiss: (1) failure to state a claim upon which relief can be granted; (2) lack of a cause of action to seek the relief requested; and (3) the injunctive relief sought is unconstitutional. Mot. to Dismiss, ECF No. 15-1 at 17-18.
Upon careful consideration of the President’s motion to dismiss, the opposition and reply thereto, the relevant arguments of amici,2 and for the reasons explained below, the Court finds that: (1) plaintiffs have stated a claim against the President for allegedly violating the Foreign Emoluments Clause; (2) plaintiffs have a cause of action to seek injunctive relief against the President; and (3) the injunctive relief sought is constitutional. The Court therefore DENIES the portions of the motion to dismiss that were deferred in the Court’s prior Order. II. Factual Background
Plaintiffs allege that the President “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments.” Am. Compl., ECF No. 14 ¶ 2. In particular, the President owns “more than 500 separate entities–hotels, golf
2 The Court appreciates the illuminating analysis provided by the amici.
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courses, media properties, books, management companies, residential and commercial buildings, . . . airplanes and a profusion of shell companies set up to capitalize on licensing deals.” Id. ¶ 34 (internal quotation mark omitted). Since being elected President, he has “not divested or otherwise given up his ownership interest in his worldwide business holdings.” Id. ¶ 36.
As a result of his financial interests, plaintiffs allege the President has accepted, and will accept in the future, Emoluments from foreign states. Id. ¶ 37. Indeed, the President has acknowledged “that his businesses receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President.” Id. Public reporting has also confirmed this to be the case. Id.
Plaintiffs allege that “[t]hese various benefits from foreign governments—payments, loans, permits, exemptions, policy changes, and intellectual property rights—constitute prohibited ‘Emolument[s]’ and/or ‘present[s]’ under the Foreign Emoluments Clause . . . .” Id. ¶ 38 (citation omitted). Specifically, the President has allegedly accepted valuable intellectual property rights from the Chinese government without seeking and obtaining the consent of Congress. Id. ¶¶ 44-50. The President has also allegedly accepted payments for hotel rooms and events from foreign diplomats and from foreign lobbying groups paid for by
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foreign governments without seeking and obtaining the consent of Congress. Id. ¶¶ 52-57. The President has allegedly accepted payments from foreign governments derived from real estate holdings, id. ¶¶ 58-62, as well as licensing fees paid by foreign governments for “The Apprentice,” id. ¶¶ 63-65, all without seeking and obtaining the consent of Congress, id. ¶¶ 59, 62, 65. Finally, the President has allegedly accepted regulatory benefits from foreign governments without seeking and obtaining the consent of Congress. Id. ¶¶ 66-67. III. Standard of Review
“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While detailed factual allegations are not necessary, a plaintiff must plead enough facts “to raise a right to relief above the speculative level.” Id.
When ruling on a Rule 12(b)(6) motion, the Court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and
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matters about which the Court may take judicial notice.” Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002). The Court must construe the complaint liberally in plaintiffs’ favor and grant plaintiff the benefit of all reasonable inferences deriving from the complaint. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court need not accept inferences that are “unsupported by the facts set out in the complaint.” Id. “Nor must the [C]ourt accept legal conclusions cast in the form of factual allegations.” Id. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). IV. Analysis
A. Constitutional Interpretation “When interpreting a constitutional provision, [the Court] must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution.” Canning v. N.L.R.B., 705 F.3d 490, 500 (D.C. Cir. 2013) (citing District of Columbia v. Heller, 554 U.S. 570 (2008)). “In interpreting the text [the Court is] 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.’” Heller, 554 U.S. at 576 (quoting United States v. Sprague, 282 U.S. 716,
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731 (1931)). “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.” Id. at 576-77. In determining the normal and ordinary meaning, the Court is to consider founding-era dictionaries and other contemporaneous sources. See, e.g., N.L.R.B. v. Canning, 573 U.S. 513, 527 (2014); Heller, 554 U.S. at 581-86. When the text is ambiguous, the Court is to consider the purpose of the clause and the historical interpretations and applications of the clause. Canning, 573 U.S. at 528-29; see also Heller, 554 U.S. at 592 (“This meaning is strongly confirmed by the historical background of the [provision].”). The Court is also to “treat[] [government] practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” Canning, 573 U.S. at 525, 530-32 (considering opinions of the Office of Legal Counsel (“OLC”) and the Comptroller General in determining the meaning of the Recess Appointments Clause).
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B. “Emolument” Is Broadly Defined as Any Profit, Gain, or Advantage3
The Foreign Emoluments Clause provides:
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. I, § 9, cl. 8.
1. The Ordinary Meaning, Text, Structure, Adoption, and Historical Interpretation of the Clause; Constitutional Purpose; and Consistent Executive Branch Practice Support a Broad Interpretation of “Emolument”
a. Ordinary Meaning of “Emolument”
The parties dispute whether the profits that the
President’s business interests earn from foreign governments are
“Emoluments” covered by the Clause. The President contends that
the Clause “is not a blanket prohibition on commercial
transactions with foreign governments by businesses in which the
3 The parties do not dispute that the Clause applies to the President. See generally Mot. to Dismiss, ECF No. 15-1; Pls.’ Opp’n, ECF No. 17; Def.’s Reply (“Reply”), ECF No. 28. The Court therefore declines to reach the question despite the argument to the contrary of one amicus brief and based on Judge Peter J. Messitte’s persuasive analysis of that argument and conclusion that the Clause does indeed apply to the President in the only other judicial opinion construing the Clause. See District of Columbia v. Trump, 315 F. Supp. 3d 875, 882-87 (D. Md. 2018) (“Trump”); see also Br. for Scholar Seth Barrett Tillman and Judicial Education Project as Amici Curiae in Supp. of the Def., ECF No. 16-1.
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official has a financial interest,” but rather “applies only to the receipt of compensation for services rendered by an official in an official capacity or in an employment (or equivalent) relationship with a foreign government, and to the receipt of honor and gifts by an office-holder from a foreign government.” Mot. to Dismiss, ECF No. 15-1 at 33-34. In support of his position, the President explains that at the time of the Nation’s founding, an “‘[E]molument’ was a common characteristic of a federal office . . . comprehensively describ[ing] ‘every species of compensation or pecuniary profit derived from a discharge of the duties of the office.’” Id. at 34 (alteration in original) (first citing United States v. Hartwell, 73 U.S. 385, 393 (1867); and then quoting Hoyt v. United States, 51 U.S. 109, 135 (1850).4 According to the President, this was because most federal officials did not receive salaries as is the case today, but rather, were compensated by fees in exchange for their services. Id. Therefore, he argues, this “common usage” of the word at the time of the founding compels interpreting the term to mean “profit arising from an office or employ.” Id. at
4 The President’s added emphasis on the phrase and reliance on this case are misleading given that the Court was not construing the meaning of the term “Emolument” generally, but rather a statutory provision concerning “the annual [E]moluments of any [customs] collector.” Hoyt, 51 U.S. at 135. Accordingly, the Emolument would necessarily derive from the discharge of the duties of the office.
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35 (quoting James Barclay, A Complete & Universal English Dictionary on a New Plan (1774)(“Barclay’s Dictionary”)).5 To illustrate, the President provides two examples of what would constitute Emoluments under his definition: (1) “a federal official would receive an Emolument if he or she was paid by a foreign government to take certain official actions”; and (2) “an Emolument would [] be received if an official became an employee or entered an employment-like relationship with the foreign government, such as if a federal government lawyer provided legal advice and services to a paying foreign power.” Id. According to the President, “[t]his interpretation is consistent with the nature of the other prohibited categories in the Foreign Emoluments Clause: present, office, and title, which are all things personally conferred or bestowed on a U.S. official holding an ‘Office of Profit or Trust.’” Id.
Plaintiffs rely on contemporaneous dictionaries, generalpurpose writings, contemporaneous state constitutions, and legal decisions to support their argument that at the time the Constitution was written, “‘[E]molument’ was a commonly used
5 Plaintiffs point out that Barclay’s dictionary defines “employ” not as “employment” but as “a person’s trade, business” and “a public office” and therefore this source supports defining an Emolument to include “profit arising from . . . a person’s trade, business.” Pls.’ Opp’n, ECF No. 17 at 42. Plaintiffs contend that this definition does not therefore support the President’s position. Id. at 42-43.
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term that often referred to profit or gain in general.” Pls.’ Opp’n, ECF No. 17 at 39 (citing The Oxford English Dictionary (2d ed. 1989) (referring to eighteenth century texts); Samuel Johnson, A Dictionary of the English Language (1755); John Mikhail, The Definition of “Emolument” in English Language & Legal Dictionaries, 15-23-1806, at 8 (July 9, 2017) (working paper), https://papers.ssrn.com/so13/papers.cfm?abstract_id=2995693 (explaining that [E]molument was defined as “‘profit,’ ‘advantage,’ ‘gain,’ or ‘benefit’ . . . in every known English language dictionary” published in the seventeenth and eighteenth centuries, that this was the exclusive definition provided in over 92% of these dictionaries, and that the President’s preferred definition appears in less than 8% of these dictionaries, but that the broader definition also appears in these latter dictionaries)). Plaintiffs also emphasize, again relying on contemporaneous documents, that the term “was frequently used to mean the profits accruing from private financial transactions.” Id. at 40.
Plaintiffs maintain that interpreting the term to “requir[e] an employment-like relationship[] is based on a flawed reading of Founding-era dictionaries . . . [and] requiring the provision of specific services in an official capacity” lacks legal support. Id. at 41. Moreover, they argue
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that even if the Court were to adopt the narrow definition that appears in the Oxford English Dictionary–“[p]rofit or gain arising from station, office, or employment; dues, reward; remuneration, salary”–“the gain arising from President Trump’s status as the head of a worldwide business empire” falls within this definition. Id. Furthermore, according to plaintiffs, “[t]he narrower definition the President cites also embraces profit or gain ‘arising from [his] office,’ as when foreign governments seek his favor by granting him lucrative trademarks or selecting his hotels” because these “benefits ‘arise from’ the office he holds, because (the Plaintiffs allege) they are being given to him because he is the President.” Id. (citing Am. Compl., ECF No. 14 ¶¶ 48, 54).
The President contends that the number of sources citing the two competing definitions is not relevant because the meaning of the term in the Clause depends on the constitutional context, the history of the Clause, and founding-era practices. Reply, ECF No. 28 at 22. The President also asserts that plaintiffs’ reliance on Professor Mikhail’s article is misplaced because another law review article has criticized it for making inaccurate assumptions. Id. at 22-23. The President argues that Professor Mikhail’s article and the sources it references actually support his position because they “demonstrate that the President’s definition is closely related to the etymology of
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[E]molument, which is profit derived from labor, or more

specifically, from grinding corn.” Id. at 23. The President also

notes that the Oxford English Dictionary lists his definition of

“emolument” first, and before plaintiffs’ broader definition,

indicating that the President’s definition predates that of the

plaintiffs. Id. at 24.

Amici Legal Historians soundly reject the President’s

“narrow definition of ‘Emolument’ [as] inaccurate,

unrepresentative, and misleading”:

Little or no evidence indicates that the two

obscure sources—Barclay (1774) and Trusler

(1766)—on which [the President] relies for

[his] “office- and employment-specific”

definition of “[E]molument” were owned,

possessed, or used by the founders, let alone

had any impact on them, or on those who debated

and ratified the Constitution. For example,

neither of these sources 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, 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

define “[E]molument” in the broad manner

favoring

the

plaintiffs:

“profit,”

“advantage,” or “benefit.”

Second, a careful review of English language dictionaries from 1604 to 1806 shows that every definition of “[E]molument” published during this period relies on one or more of the elements of the broad definition [the

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President] rejects in [his] brief: “profit,” “advantage,” “gain,” or “benefit.” . . . Finally, Trusler’s volume is not a standard dictionary, but rather a thesaurus, which presumes that “gain,” “profit,” and “[E]molument” are synonyms; moreover, its explanation of “[E]molument” was copied directly from a French thesaurus, hence it is not even reliably grounded in English usage. The impression [the President] creates in [his] brief by contrasting four historical definitions of “[E]molument”—two broad and two narrow—is, therefore, highly misleading.
Br. of Amici Curiae by Certain Legal Historians on Behalf of
Pls. (“Br. of Legal Historians”), ECF No. 46 at 12-13 (footnotes
omitted).
The President does not dispute that the broader definition
existed at the time the Constitution was ratified, Mot. to
Dismiss, ECF No. 15-1 at 37, and plaintiffs acknowledge that a
narrower definition existed at the time, Pls.’ Opp’n, ECF No. 17
at 41. Plaintiffs’ main contention is that because the evidence
demonstrates that the broader definition was more pervasive, it
was what was intended in the Clause. The President responds that
the narrower definition is the “better one” to use given the
context and history of the Clause.
The Court is persuaded that the weight of the evidence in
“founding-era dictionaries and other contemporaneous sources”
supports the broad meaning of the term advocated by plaintiffs
and supported by the Legal Historians. Trump, 315 F. Supp. 3d at
882 (citing Canning, 573 U.S. at 527). The fact that there is
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evidence from founding-era sources that both the broad definition advocated by plaintiffs, as well as a narrower definition associating “Emolument” with employment, existed at the ratification of the Constitution, however, suggests some ambiguity in the term. Accordingly, the Court considers the surrounding text, structure, adoption, historical interpretation, and purpose of the Clause, as well as Executive Branch practice to determine the meaning of “Emolument.” See Canning, 573 U.S. at 528-29 (when the constitutional text is ambiguous, the court is to consider the purpose of the clause and the historical interpretations and applications of the clause).
b. Text and Structure of the Clause, and Other Uses in the Constitution
The President acknowledges that the broader definition of “Emolument” advocated by plaintiffs “resembles a broader definition that also existed at the time of the founding” but points to the legal interpretive principle that a word with different meanings should be interpreted by reference to the context. Mot. to Dismiss, ECF No. 15-1 at 37-38. Accordingly, “when read harmoniously with the rest of the Clause, [Emolument] has the natural meaning of the narrower definition of profit arising from an official’s services rendered pursuant to an office or employ.” Id. at 38. The President also asserts that
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plaintiffs’ broad definition of “Emolument” would subsume the term “present” in the Clause and render it redundant, noting that plaintiffs use the terms “Emolument” and “present” interchangeably. Id. at 38-39 (citing Holmes v. Jennison, 39 U.S. 540, 570-71 (1840) (“In expounding the Constitution of the United States, every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.”)).
The President contends that the other two instances in which “Emolument” is used in the Constitution provide further support for his narrow definition because “[e]ach is associated with an office and refers to compensation for services rendered in the capacity as the holder of that office.” Id. at 36 (citing U.S. Const. art. II, § 1, cl. 7 (“The President, shall, at stated Times, 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.”); U.S. Const. art. I, § 6, cl. 2 (“No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time. . . .”)).
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Plaintiffs argue that even if the President’s narrow definition of “Emolument” existed, the Clause does not use the word in such a narrow sense, because to do so would render the phrase “of any kind whatever” surplusage. Pls.’ Opp’n, ECF No. 17 at 43. Plaintiffs assert that the purpose of this phrase “is to rule out interpretations [of ‘Emoluments’] that would allow some ‘kinds’ of emolument to be accepted.” Id. at 44. Plaintiffs point to the Incompatibility Clause to support their argument that the reach of the Clause is broad. Id. The Incompatibility Clause provides that no member of Congress “shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.” U.S. Const. art. I, § 6, cl.2. Plaintiffs point out that this Clause applies only to Emoluments bestowed by the federal government upon civil office holders, whereas the Foreign Emoluments Clause contains no such prohibition. Pls.’ Opp’n, ECF No. 17 at 44. Plaintiffs also argue that the reason the Clause permits exceptions—with the consent of Congress—is precisely because its reach is so broad. Id.
In response to plaintiffs’ argument that the phrase “of any kind whatever” compels their preferred definition, the President argues that this phrase “emphasizes the Clause’s reach—every kind of [E]molument, present, office, or title—and is not a basis to choose which definition” was intended in the Clause.
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Reply, ECF No. 28 at 25. In response to plaintiffs’ argument that the President’s definition renders “of any kind whatever” to be surplusage because of the word “any,” the President posits that there is no redundancy in his interpretation because “[t]he more plausible role of this first use of the word ‘any’ in the Clause is numeric—that no prohibited Emoluments may be received by a covered official without the consent of Congress, whereas the phrase ‘of any kind whatever’ operates to ensure that every type of the identified compensation is also prohibited.” Id. at 26.
Finally, the President disputes that use of the term “Emoluments” in the Incompatibility Clause bolsters plaintiffs’ interpretation of the term because “the fact that a reference to an office is not included in the Foreign Emoluments Clause is simply due to the fact that the Foreign Emoluments Clause has a broader reach—it regulates not only compensation or benefits arising from holding federal office but also any employment-like relationship between a foreign government and a covered official.” Id. The President notes that the term “Emolument” is used only one other time in the Constitution—in the Domestic Emoluments Clause which provides that “[t]he President shall, at stated Times, 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.” Id. at 27 (quoting U.S.
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Const. art. II, § 1, cl.7). The President concludes that it would not make sense for the term to have different meanings in the Constitution and that “all three clauses in which the term appears are tied to holding office and regulat[ing] the conduct of office-holders.” Id.
The Court is persuaded that the text and structure of the Clause, together with the other uses of the term in the Constitution, support plaintiffs’ definition of “Emolument” rather than that of the President. The Clause bans, without congressional approval, “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 (emphasis added). The President’s argument that the phrase “of any kind whatever” should be understood to modify “Emoluments” defined narrowly rather than being “a basis to choose which definition” was meant in the Clause, Reply, ECF No. 28 at 25, is unpersuasive and inconsistent with his own argument. The President himself argues that a word with different meanings should be interpreted by reference to the context. Mot. to Dismiss, ECF No. 15-1 at 38. “[T]he meaning of a term may be enlarged or restrained by reference to the object of the whole clause in which it is used.” Virginia v. Tennessee, 148 U.S. 503, 519 (1893). Here, it is uncontested that the broad meaning and a narrower meaning tied to employment existed at the time the Constitution was
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ratified, and this expansive modifier, which as plaintiffs point out is used nowhere else in the Constitution, logically serves to ensure that the acceptance of any foreign Emolument, however defined, is prohibited without congressional consent. See also Trump, 315 F. Supp. 3d at 888 (“If there were any doubt as to the limits of the Foreign Clause, the Framers used the word ‘any’ twice, ensuring a broad and expansive reach.”).
The President’s argument that the use of “Emolument” in the Incompatibility Clause and the Domestic Emoluments Clause supports his narrow definition is similarly unconvincing. In the former, “Emolument” specifically refers to an office, indicating that when the Founders intended for an Emolument to refer to an official’s salary or payment associated with their office, they said so explicitly. See U.S. Const. art. I, § 6, cl. 2. In the latter, the Emoluments that are prohibited are those that would be received “from the United States or any of them.” U.S. Const. art. II, § 1, cl. 7. Thus, rather than “Emolument” having different meanings the three times it is used in the Constitution, more logically, the broader meaning is modified in each Clause according to the purpose of the Clause. See Virginia, 148 U.S. at 519; see also Trump, 315 F. Supp. 3d at 888 (“If ‘[E]molument’ were always to be read as a synonym for salary or payment for official services rendered, th[e] modifier in the Incompatibility Clause would have been unnecessary.”).
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Also unconvincing is the President’s argument that adopting plaintiffs’ definition of “Emolument” to mean “profit,” “gain,” or “advantage” would render the term “present” redundant. The President points out that a “present” was defined as it is today: “[s]omething bestowed upon another without price or exchange; the act of giving.” Mot. to Dismiss, ECF No. 15-1 at 39 (quoting Barclay’s Dictionary). As Judge Messitte observed, defining an “Emolument” as a “profit,” “gain,” or “advantage” “ensure[s] that the Clause covered all types of financial transactions—solicited or unsolicited, reciprocated or unreciprocated, official or private”—even if “Emolument” is sometimes used synonymously with “present.” Trump, 315 F. Supp. 3d at 889.
Furthermore, Judge Messitte points out that the President’s narrow definition “would seem to create its own concerning redundancies within the Constitution.” Id. As the President explained, a practical example of his definition would be when “a federal official would receive an [E]molument if he or she was paid by a foreign government to take certain official actions.” Mot. to Dismiss, ECF No. 15-1 at 35. Judge Messitte persuasively states that this example
is tantamount to defining the transaction as nothing less than one of federal bribery, a crime which prohibits a federal public official from, directly or indirectly, receiving or accepting “anything of value” in
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return for “being influenced in the performance of any official act.” 18 U.S.C. § 201(b)(2). Given that Article II, Section 4 of the Constitution already addresses the crime of bribery, making it an impeachable offense, there would have been little need to include two additional and distinct Emoluments Clauses prohibiting the acceptance of money from foreign or state governments for official services rendered. Moreover, it seems highly unlikely that the Framers would have intended bribery to be both an impeachable offense and, at the same time, an activity Congress could consent to when a foreign government donor is involved. The President makes no attempt to come to terms with this anomaly.
Trump, 315 F. Supp. 3d at 889 (footnote omitted). Finally, there
is no question that the receipt of Emoluments is tied to the
office of President and regulating his conduct as President, but
that does not compel defining “Emolument” as narrowly as the
President advocates.
c. Adoption and Historical Interpretation of the Clause
The President argues that “[t]he adoption and historical
interpretation of the . . . Clause are consistent with the
office- and employment-specific construction of the term
‘Emolument.’” Mot. to Dismiss, ECF No. 15-1 at 40. In support,
the President observes that “the history of the Clause’s
adoption [is] devoid of any concern about an official’s private
commercial businesses.” Id. at 42. Plaintiffs describe this as
a “dog that didn’t bark” argument, stating that even if this is
true, “it [] tells us nothing. Discussion of the Clause was not
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extensive because the Clause was not controversial.” Pls.’ Opp’n, ECF No. 17 at 44. Furthermore, according to plaintiffs, “the agrarian economy of the eighteenth century, the comparatively limited role of government, and the primitive travel technology available would have made private commerce with foreign states an unlikely conduit for foreign influence at the time.” Id. at 44-45.
Citing examples of early Presidents exporting agricultural products to foreign countries, the President argues that historical evidence supports his position that the Clause was not intended “to reach commercial transactions that a President (or other federal official) may engage in as an ordinary citizen through his business enterprises.” Mot. to Dismiss, ECF No. 15-1 at 43-44. Plaintiffs point out that none of the examples are of commercial transactions with a foreign government, thus the President can “claim only that they might have conducted such business.” Pls.’ Opp’n, ECF No. 17 at 45. The President responds that while the records are limited and inconclusive, because “there is no question that private business pursuits by federal officials, including by early Presidents, were common at the time of the Nation’s founding[,] [i]t is reasonable to infer that at least some of their transactions may have been with foreign or domestic government actors, including foreign state-chartered trading companies.”
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Reply, ECF No. 28 at 29. The President relies heavily on one historical incident—President George Washington’s purchase of land from the federal government in the then-Territory of Columbia—to argue that if plaintiffs’ definition of “Emoluments” applies, President Washington would have violated the Domestic Emoluments Clause, pointing out that the precedents President Washington set are considered authoritative. Mot. to Dismiss, ECF No. 15-1 at 45-46.
Finally, the President argues that a proposed constitutional amendment that would have applied the prohibitions in the Clause to all private citizens undermines the broad definition, asserting that it is “implausible that this amendment was intended or understood as providing for the revocation of the citizenship of anyone engaging in commerce with foreign governments or their instrumentalities . . . [and] . . . inconceivable that Congress and nearly three-fourths of the States intended to strip the citizenship of, for example, those hotel owners whose customers included visiting foreign diplomats using government funds.” Id. at 47. Amici Legal Historians point out, however, that “[i]n 1810, Americans conceived precisely of this problem” given the historical context. Br. of Legal Historians, ECF No. 32 at 33. Plaintiffs also point out that the President’s argument is self-defeating because, for example, “a household servant temporarily hired by
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a visiting foreign diplomat . . . would be ‘in an employmentlike relationship’ with the diplomat.” Pls.’ Opp’n, ECF No. 17 at 45 (citing Mot. to Dismiss, ECF No. 15-1 at 22). The Court is persuaded that the adoption of the Clause and its historical interpretation support plaintiffs’ definition rather than that of the President. It is well-established that there was little discussion of the Clause by the Framers because it was noncontroversial. See Br. of Legal Historians, ECF No. 46 at 24. Furthermore, the Court declines to make the inference advocated by the President—that it is reasonable to infer that some of the early Presidents’ private business pursuits would have been with foreign state-chartered trading companies— because the President has provided no evidence to justify making such an inference. See generally Mot. to Dismiss, ECF No. 15-1; Reply, ECF No. 28. On a motion to dismiss, it is the plaintiff, not the defendant, who receives the benefit of all reasonable inferences deriving from the complaint. See Kowal, 16 F.3d at 1276. Similarly, the Court declines to infer that the President’s narrow definition should be adopted based on President Washington’s purchase of public land, potentially in violation of the Domestic Emoluments Clause, given this was a single incident as compared with the great weight of the historical interpretation of the Clause. See also Trump, 315 F. Supp. 3d at 903-904 (noting that the facts regarding this
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transaction are “seriously incomplete”). Finally, the Court is not persuaded that the President’s reliance on a proposed constitutional amendment that never became law, and for which he is unable to cite any floor debates that would illuminate the intent of the amendment, should be accorded any weight in determining the meaning of “Emolument.”
d. Purpose of the Clause The President pays little attention to interpreting the meaning of “Emolument” by reference to the purpose of the Clause, briefly acknowledging that “[a]lthough the Clause was intended to combat corruption and foreign influence, the text, original understanding, and historical practice provide no support for Plaintiffs’ inferential leap from the Clause’s purpose to a blanket prohibition on receiving ‘any monetary or nonmonetary benefit’ regardless of context.” Mot. to Dismiss, ECF No. 15-1 at 53. The President also notes that the Framers “gave no indication that they intended to require officeholders to divest their private commercial businesses in order to assume federal office.” Id. The President argues that plaintiffs’ definition would result in “absurd consequences” because, among other things, royalties from foreign book sales, United States Treasury bonds, and stock holdings could be considered prohibited foreign Emoluments. Id. at 53-56.
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Plaintiffs argue that even if the term is considered ambiguous, any ambiguity should be resolved against the President because his proposed definition “would defeat the Clause’s purpose—throwing open the doors to the corruption of any officeholder wealthy enough to own businesses and reducing the Clause to a mere bribery law, not a prophylactic safeguard against the possibility of corruption.” Pls.’ Opp’n, ECF No. 17 at 45. Plaintiffs cite contemporaneous documents to support their argument that the purpose of the Clause was “to exclude corruption and foreign influence,” id. at 46 (quoting 3 Elliot’s Debates 465 (Randolph)), prompted by the need to guard against “the influence which foreign powers may attempt to exercise in our affairs,” id. (quoting Tench Coxe, An Examination of the Constitution for the United States of America, No. 4 (Oct. 21, 1787), and to “lock up every door to foreign influence,” id. (quoting 5 Annals of Cong. 1584 (1978) (Claiborne)). Plaintiffs also cite contemporary OLC memoranda which consistently give the Clause a broad scope. Id. at 46-47.
Amici Former Government Ethics Officers, former government officials tasked with interpreting the Clause, dispute that “absurd consequences” would result from adopting plaintiffs’ broad definition of “Emolument” because “the government applies a totality-of-the-circumstances approach to Emoluments Clause questions, with a bias in favor of breadth, and a keen eye to
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the anti-corruption purpose of the clause[].” Br. of Former Gov’t Ethics Officers as Amici Curiae Supporting Pls.’ Opp’n to Def.’s Mot. to Dismiss (“Br. of Former Gov’t Ethics Officers”), ECF No. 42 at 10. So, for example, amici dispute that royalties from foreign book sales would be subject to the Clause unless “a foreign government attempts to influence a President by purchasing copies of his book, or if a competent authority finds a real potential for such influence.” Id. at 15. As to restricting the ability to hold Treasury bonds or stock holdings, amici state that “these payments are unlikely to raise concerns because it is highly doubtful that holding publicly traded securities would create the potential for others to exercise undue influence over the holder.” Id. at 14. In view of the overwhelming evidence pointing to over two hundred years of understanding the scope of the Clause to be broad to achieve its purpose of guarding against even the possibility of “corruption and foreign influence,” 3 Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1966), the Court is persuaded that adopting plaintiffs’ broad definition of “Emolument” ensures that the Clause fulfills this purpose. See also Canning, 573 U.S. at 528 (“[W]e believe the [Recess Appointments] Clause’s purpose demands the broader interpretation” in light of the ambiguity of the constitutional text.). In view of the arguments of amici to the contrary, the
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Court is also not persuaded that “absurd consequences” would result from this broad definition in view of the consistent Executive Branch practice of applying a totality-of-thecircumstances approach to applying the Clause. For the same reason, it is clear that adopting the plaintiffs’ definition would not result in a “blanket prohibition” that disregards context.
e. Executive Branch Practice As the Court explained in Blumenthal I, “[h]istorically, Presidents have complied with the Clause by either seeking and obtaining congressional consent prior to accepting foreign presents or Emoluments, or by requesting an opinion from the Executive or Legislative Branch’s advisory office as to whether the Clause applies.” Blumenthal I, 335 F. Supp. 3d at 53 (citing Br. of Federal Jurisdiction and Constitutional Law Scholars as Amicus Curiae in Supp. of Pls., ECF No. 44 at 24 (“Br. of Federal Jurisdiction and Constitutional Law Scholars”)). “Modern Presidents, except for President Trump, have sought advice from OLC prior to accepting potentially covered Emoluments.” Id. at 53-54 (citing Br. of Federal Jurisdiction and Constitutional Law Scholars, ECF No. 44 at 25). The Comptroller General of the United States is also charged with interpreting the application of the Clause. Mot. to Dismiss, ECF No. 15-1 at 49.
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The President points to interpretations from these authorities as support for his preferred definition of “Emolument” because “[i]n every published OLC or Comptroller General opinion in which proposed conduct was determined to involve prohibited [E]moluments, the determination involved an employment relationship (or a relationship akin to an employment relationship) with the foreign government.” Id. Plaintiffs respond that the reason for this is simple: “OLC and the Comptroller General render decisions in response to requests from federal officers. Most such officers are not real estate magnates, but rather people who earn money by providing their individual labor or expertise.” Pls.’ Opp’n, ECF No. 17 at 49.
Amici Former Government Ethics Officers explain that the OLC, Comptroller General, and Department of Defense apply the following principles when determining whether the Clause applies to the situation at issue. Br. of Former Gov’t Ethics Officers, ECF No. 42 at 7-8. First, because the “‘expansive language and underlying purpose . . . strongly suggest that [the Clause] be given broad scope’ . . . analyses have therefore usually started from the presumption that the clause applies . . . [because] . . . ‘[t]hose who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty.’” Id. at 8-9 (internal citations and quotations omitted). Second, and as explained above, the government uses a
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“totality-of-the-circumstances approach” in determining whether the Clause applies to the situation and “has never come close to adopting anything like the rigid, narrow rule advanced by the [President].” Id. at 10-11. As an example, “the government has reached varying conclusions as to whether particular payments come from a ‘foreign state’ depending on how much control foreign governments exercise over those payments.” Id. at 10. Amici also point out that “the government has never determined that the clause permits a public officeholder to maintain an interest in a business that stands to benefit by virtue of that person holding public office.” Id. at 11. Amici explain that officials pay “close attention to whether the arrangement creates even a potential for improper foreign government influence over a person in an office of public trust. When such a potential exists—even if the probability is quite low—the government has found that such arrangements violate the Foreign Emoluments Clause.” Id.
Given that there is only one other judicial opinion interpreting the Clause, the Court looks to OLC and Comptroller General opinions as sources of authority for how “Emolument” is defined and how the Clause is interpreted and applied. Canning, 573 U.S. at 525 (noting that “the longstanding ‘practice of the government’ can inform our determination of ‘what the law is’” and that “this Court has treated practice as an important
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interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era”) (citations omitted). OLC opinions have consistently cited the broad purpose of the Clause and broad understanding of “Emolument” advocated by plaintiffs to guard against even the potential for improper foreign government influence. E.g., Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98 (1986) (The Clause’s “expansive language and underlying purpose . . . strongly suggest that it be given broad scope.”); Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 121 (1993) (“The language of the Emoluments Clause is both sweeping and unqualified.”); Memorandum from Norbert A. Schlei, Assistant Att’y Gen., Office of Legal Counsel, to Andrew F. Oehmann, Office of the Att’y Gen., Re: Invitation by Italian Government to Officials of the Immigration and Naturalization Service & a Member of the White House Staff 2 (Oct. 16, 1962), https://www.justice.gov/olc/page/file/935741/download (noting “the sweeping nature of the constitutional prohibition and the fact that in the past it has been strictly construed, being directed against every possible kind of influence by foreign governments over officers of the United States”). Accordingly, adopting the President’s narrow definition of “Emolument” would
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be entirely inconsistent with Executive Branch practice defining “Emolument” and determining whether the Clause applies.
Significantly, the President has not cited an OLC or Comptroller General opinion that supports his position. See generally Mot. to Dismiss, ECF No. 15-1; Reply, ECF No. 28. To the contrary, he can only assert that his position “is not inconsistent with the conclusions of any published OLC or Comptroller General opinions.” Def.’s Suppl. Br. in Supp. of his Mot. to Dismiss and in Resp. to the Brs. of Amici Curiae, ECF No. 51 at 23-24. However, one opinion directly contradicts his narrow reading of the Clause, and another undermines his narrow definition of “Emolument.”
In 1993, OLC issued an opinion stating that nongovernmental lawyers who were members of the Administrative Conference of the United States (“ACUS”) could not receive partnership distributions from their respective firms where the distribution would include fees from foreign government clients even though the lawyers “did not personally represent a foreign government, and indeed had no personal contact with that client of the firm.” Applicability of the Emoluments Clause to NonGovernment Members of ACUS, 17 Op. O.L.C. at 119. OLC reasoned that:
Because the amount the Conference member would receive from the partnership’s profits would be a function of the amount paid to the firm
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by the foreign government, the partnership would in effect be a conduit for that government. Thus, some portion of the member’s income could fairly be attributed to a foreign government. We believe that acceptance of that portion of the member’s partnership share would constitute a prohibited [E]molument. Id.6 Judge Messitte noted that “[t]his language directly contradicts the President’s suggestion that there can be no violation of the Foreign [Emoluments] Clause if the federal official is receiving benefits in a private capacity.” Trump, 315 F. Supp. 3d at 902. And as amici observe, this Opinion “devastates the [President’s] primary argument for a narrow reading of the clause because it shows that even an attenuated economic interest in ordinary commercial transactions that generate value for both sides can violate the [Foreign] Emoluments Clause if that business nevertheless creates the potential for undue influence over public officials.” Br. of Former Gov’t Ethics Officers, ECF No. 42 at 21. The Court agrees. Nor does the Comptroller General opinion concluding that President Ronald Reagan’s receipt of California pension benefits did not violate the Domestic Emoluments Clause provide support
6 OLC later determined that non-governmental members of ACUS were not subject to the Clause, but did not its modify determination that the distribution was an Emolument. Applicability of the Emoluments Clause to Nongovernmental Members of ACUS, 2010 WL 2516024 (June 3, 2010).
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for the President’s definition of “Emolument.” The Comptroller General determined that “the term ‘[E]molument’ cannot be considered to extend to benefits that have been earned or to which entitlement arose before his occupancy of that office, and that clearly have no connection, either direct or indirect, with the Presidency . . . [because they]. . . cannot be construed as being in any manner received in consequence of his possession of the Presidency.” Hon. George J. Mitchell, U.S. Senate, B-207467, 1983 WL 27823, at *3 (Comp. Gen. Jan. 18, 1983). Those retirement benefits are entirely distinguishable from the situation here, where it is alleged that, among other things, foreign diplomats stay at the President’s Washington D.C. hotel “to curry favor with [him] because of his position as President of the United States,” Am. Compl., ECF No. 14 ¶ 54; and that “his businesses receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President,” id. ¶ 37; see also Trump, 315 F. Supp. 3d at 903 (observing that “profits received from foreign or domestic governments that patronize the Trump International Hotel for the express purpose of potentially currying favor with a sitting President present a stark contrast to the fully vested retirement benefits that then-Governor Reagan earned from the State of California which the State of California was not free to withdraw.”).
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Finally, the President finds support for his preferred definition in statutory provisions that exempt certain employment relationships between government officials and foreign officials from the scope of the Clause, asserting that “[h]ad Congress understood the Clause to reach more broadly than compensation arising from personal services rendered to a foreign government, it surely would have exempted a wider range of activities.” Mot. to Dismiss, ECF no. 15-1 at 52. The Court is not persuaded that the President’s reliance on statutory provisions that were never enacted should be accorded any weight in determining the scope of the Clause.
Consistent Executive Branch practice, which “has never come close to adopting anything like the rigid, narrow rule advanced by the [President],” Br. of Former Gov’t Ethics Officers, ECF No. 42 at 10-11, clearly supports plaintiffs’ broad definition of “Emolument” rather than that of the President. Accordingly, “Emolument” is broadly defined as any profit, gain, or advantage. See also Trump, 315 F. Supp. 3d at 905 (finding that the term Emolument “extends to any profit, gain, or advantage, of more than de minimis value, received by [the President], directly or indirectly, from foreign . . . governments”).
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C. Plaintiffs Have Stated a Claim Under the Foreign Emoluments Clause
With “Emolument” defined broadly as any profit, gain, or advantage, it is clear that the Amended Complaint states a plausible claim against the President for violations of the Clause. Plaintiffs have alleged that the President has accepted a variety of Emoluments from foreign governments—intellectual property rights, payments for hotel rooms and events, payments derived from real estate holdings, licensing fees for “The Apprentice,” and regulatory benefits—without seeking and obtaining the consent of Congress. Am. Compl., ECF No. 14, ¶¶ 44-67. Accepting the allegations in the Amended Complaint as true, which the Court must at this juncture, plaintiffs’ allegations state a plausible claim for relief, and survive the President’s motion to dismiss. Iqbal, 556 U.S. at 679.
D. Plaintiffs Have a Cause of Action to Seek Injunctive Relief and the Injunctive Relief Sought Is Constitutional 1. Plaintiffs Have a Cause of Action to Seek Injunctive Relief
The President, analogizing the Foreign Emoluments Clause to the Supremacy Clause, argues that the Clause “is not a source of federal rights such that the Court may imply a cause of action under the Clause.” Mot. to Dismiss, ECF No. 15-1 at 29. As he must, however, the President acknowledges that equitable relief is available “to enjoin unconstitutional actions by public
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officials,” but emphasizes that such relief is only available in “a proper case,” id. (citing Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015)), as “an act of equitable discretion by the district court,” id. (citing eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). The President argues that this is not “a proper case” for the Court to exercise its equitable discretion for three reasons. Id. at 30-32. First, “[p]laintiffs are not preemptively asserting a defense to a potential enforcement action against them by the Government, which is the paradigmatic situation where implied equitable claims against the Government have been recognized.” Id. at 30. “Second, equity ‘may not be used to create new substantive rights’ . . . and the . . . Clause does not create any personal or judicially enforceable rights.” Id. at 31. As part of this point, the President argues that plaintiffs cannot show that their injury falls within the zone of interests protected by the Clause because only Congress as a whole, and not its individual members, fall within the zone of interests protected by the Clause. Id. Third, plaintiffs “can obtain relief only by suing the President himself, which (if not legally foreclosed) is at a minimum grounds for extreme equitable restraint.” Id. at 32 (citation omitted). The President concludes by reiterating his argument that plaintiffs’ remedy lies with Congress rather than the Courts. Id.
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Plaintiffs respond that they have an implied cause of action to seek injunctive relief based on long-standing Supreme Court precedent ensuring the “‘ability to sue to enjoin unconstitutional actions’ by government officials.” Pls.’ Opp’n, ECF No. 17 at 50-51 (quoting Armstrong, 135 S. Ct. at 1385-86). According to plaintiffs, an implied private right of action exists “when a plaintiff is injured by a constitutional violation, including a ‘separation of powers’ violation,” unless there is a reason to treat the claim differently from any other constitutional claim. Id. (citing Free Enter. Fund v. P.C.A.O.B., 561 U.S. 477, 491 n.2 (2010)). Plaintiffs argue that there is no reason to treat the claim here differently, and they reject the President’s analogy to the Supremacy Clause. Id. at 51.
Plaintiffs reject the President’s contention that the “zone-of-interests” test applies to constitutional claims in light of Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014), but state that even if it does, they easily satisfy it. Pls.’ Opp’n, ECF No. 17 at 52. Plaintiffs argue that “[t]he interest they seek to vindicate is at the heart of the Clause, which employs separation of powers to combat foreign corruption.” Id. Plaintiffs observe that the President concedes that Congress as a whole would satisfy any zone-of-interests test, but that he offers no reason why
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individual Members of Congress have a different zone of interests. Id.
The Court is not persuaded that it should find no implied cause of action in the Foreign Emoluments Clause on the ground that the Supremacy Clause does not create a cause of action. In holding there is no implied cause of action in the Supremacy Clause, the Supreme Court stated that it “does not create a cause of action. It instructs courts what to do when state and federal law clash . . .” Armstrong, 135 S. Ct. at 1383. That “instruction” stands in sharp contrast to the Clause, which prohibits the acceptance of any foreign Emoluments of any kind whatever without the consent of Congress. Furthermore, the President points to no authority holding that the Appointments Clause, which arguably is analogous to the Foreign Emoluments Clause, does not create an implied right of action. See generally Mot. to Dismiss, ECF No. 15-1; Reply, ECF No. 28.
The Court is persuaded that this is a proper case in which to exercise its equitable discretion to enjoin allegedly unconstitutional action by the President. See Armstrong, 135 S. Ct. at 1384 (“[W]e have long held that federal courts may in some circumstances grant injunctive relief . . . with respect to violations of federal law by federal officials.”) (citations omitted). As plaintiffs point out, there is no reason for the exercise of equitable discretion to be limited to defend a
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potential enforcement action and the President has cited no authority to the contrary. Pls.’ Opp’n, ECF No. 17 at 54. Rather, “it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution” unless there is a reason not to do so. Free Enter. Fund, 561 U.S. at 491 n.2 (citation omitted); Nixon v. Fitzgerald, 457 U.S. 731, 753-54 (1982) (“It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.”). Here, accepting the allegations in the Amended Complaint as true, which the Court must at this juncture, the President is accepting prohibited foreign emoluments without seeking congressional consent, thereby defeating the purpose of the Clause to guard against even the possibility of “corruption and foreign influence.” 3 Records of the Federal Convention of 1787, at 327 (Max Farrand ed., 1966). Exercising the Court’s equitable discretion here is therefore “not in derogation of the separation of powers, but to maintain their proper balance.” Nixon, 457 U.S. at 754.
“[T]he plaintiff’s complaint [must] fall within ‘the zone of interests’ to be protected or regulated by the statue or constitutional guarantee in question.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 499
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(1975)). “We doubt, however, that it is possible to formulate a single [zone of interests] inquiry that governs all statutory and constitutional claims.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 400 n.16 (1987). Assuming the zone-of-interests test applies here, the Court is persuaded that individual Members of Congress satisfy that test. The President has conceded that Congress as a body would satisfy the zone-of-interests test, Mot. to Dismiss, ECF No. 15-1 at 31, but asserts in his reply that “[p]laintiffs’ claim that they have been deprived of legislative prerogatives as Members of Congress is at most ‘marginally related’ to the Foreign Emoluments Clause’s purpose of guarding against foreign influence,” Reply, ECF No. 28 at 20 (citing Clarke, 479 U.S. at 394, 399). The Court disagrees. The only way the Clause can achieve its purpose is for the President to seek and obtain the consent of Congress before he accepts foreign Emoluments. The Amended Complaint alleges that plaintiffs’ injury is that they have been deprived of the right to vote to consent to the President’s receipt of foreign Emoluments before he accepts them. Am. Compl., ECF No. 14 ¶ 82. Plaintiffs’ injury is therefore hardly “marginally related” to the purpose of the Clause, but is directly related to the only way the Clause can achieve its purpose. See Riegle v. Fed. Open Mkt Comm., 656 F.2d 873, 879 (D.C. Cir. 1981) (“[T]he interest which Riegle claims was injured by defendants’ action (his right
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to advise and consent to the appointment of officers of the executive branch) is within the zone of interests protected by the Appointments Clause of the Constitution.” (citation omitted)).7 And as the Court explained at length in its previous Opinion, here there is no adequate legislative remedy. Blumenthal I, 335 F. Supp. 3d at 66-68.
The Court rejects the President’s suggestion that “extreme equitable restraint” is appropriate here because plaintiffs can only obtain relief from the President. Mot. to Dismiss, ECF No. 15-1 at 32. Rather, the fact that plaintiffs can only obtain relief from the President is precisely the reason the Court should exercise its equitable discretion here. See District of Columbia v. Trump, 291 F. Supp. 3d 725, 752 (2018) (observing that “it would be exalting form over substance if the President’s acts were held to be beyond the reach of judicial scrutiny when he himself is the defendant, but held within judicial control when he and/or the Congress has delegated the performance of duties to federal officials subordinate to the President and one or more of them can be named as a defendant”
7 The Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) expressly disapproved of “Riegle’s intimation in dicta that the standing of private plaintiffs to bring particular action affects the propriety of our entertaining the same challenge when brought by a legislator.” Melcher v. Fed. Open Mkt Comm., 836 F.2d. 561, 565 (D.C. Cir. 1987). However, the Court did not address the zone-of-interests analysis in Riegle. See generally id.
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(quoting Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587, 613 (D.C. Cir. 1974)); see also Br. of Separation of Powers Scholars as Amici Curiae in Supp. of Pls. (“Br. of Separation of Powers Scholars”), ECF No. 45 at 15-16 (explaining that the cases cited by the President do not require dismissal of this lawsuit because: (1) in Mississippi v. Johnson, 71 U.S. 475 (1866), the Supreme Court dismissed the case and Mississippi then brought suit against Secretary of War and two other defendants challenging the same Acts; and (2) in Franklin v. Massachusetts, 505 U.S. 788 (1992) (plurality opinion), the injury could be redressed by the Secretary of Commerce. Rather, when there is no other remedy, courts have allowed suits against the President to proceed).
The Court is mindful that “the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.” Loving v. United States, 517 U.S. 748, 757 (1996) (citing Mistretta v. United States, 488 U.S. 361, 397-408 (1989)). However, as amici Separation of Powers Scholars point out, there is no such risk here as the President has not identified what duties would be impaired, which is distinct from Mississippi v. Johnson, where “the relief sought by the plaintiff against the President would have interfered directly with the President’s ability to take care that the Reconstruction Acts were faithfully executed.” Br.
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of Separation of Powers Scholars, ECF No. 45 at 17-18 (citing Johnson, 71 U.S. at 499). Amici also note that “far from distracting the President from his official duties, ‘any Presidential time spent dealing with, or action taken in response to’ a case clarifying the scope of the Foreign Emoluments Clause is actually ‘part of a President’s official duties.’” Id. at 19 (quoting Clinton v. Jones, 520 U.S. 681, 718 (1997) (Breyer, J., concurring in the judgment)). The Court agrees. The parties dispute the meaning of “Emolument” but not that the Clause applies to the President. Accordingly, adjudicating this case ensures that the President fulfills his duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and consistent with his oath of office to “preserve, protect and defend the Constitution of the United States,” U.S. Const. art. II, § 1, cl. 8.
2. The Injunctive Relief Sought Is Constitutional The President argues that the remedy plaintiffs seek is unconstitutional because an injunction against him in his official capacity would effectively “impose a condition on [his] ability to serve as President and to perform the duties he is duly elected to perform,” Mot. to Dismiss, ECF No. 15-1 at 56, thereby “implicating core ‘executive and political’ duties,” Reply, ECF No. 28 at 32 (quoting Johnson, 71 U.S. at 499). Plaintiffs respond that the relief sought is not barred because
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complying with the Clause is akin to performing a ministerial duty rather than an official one, and there is no prohibition on injunctive relief for the performance of a ministerial duty by the President. Pls.’ Opp’n, ECF No. 17 at 52-54. The President complains that if plaintiffs’ interpretation of the Clause is correct, an injunction requiring his “compliance with the Clause would impose significant burdens” on him. Reply, ECF No. 28 at 32. The President also disputes that compliance with the Clause can be characterized as ministerial because of the “judgment” and “planning” needed to ensure compliance, but that even if it was so properly characterized, “this Court should still exercise utmost restraint in deciding whether to enjoin a sitting President.” Id.
The Court agrees that restraint is appropriate. However, Supreme Court and D.C. Circuit precedent do not foreclose injunctive relief against the President under certain circumstances. A “grant of injunctive relief against the President himself is extraordinary, and should . . . raise [] judicial eyebrows.” Franklin, 505 U.S. at 802. That said, the Supreme Court “left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty.” Id. (citing Johnson, 71 U.S. at 498–99). “A ministerial duty is one that admits of no discretion, so that the official in question has no
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authority to determine whether to perform the duty.” Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996) (citing Johnson, 71 U.S. at 498 (“[A] ministerial duty . . . is one in respect to which nothing is left to discretion.”)). “[A] ministerial duty can exist even ‘where the interpretation of the controlling statute is in doubt,’ provided that ‘the statute, once interpreted, creates a peremptory obligation for the officer to act.’” Id. at 978 (quoting 13th Reg’l Corp. v. Dep’t of the Interior, 654 F.2d 758, 760 (D.C. Cir. 1980)).
“The language of the Emoluments Clause is both sweeping and unqualified.” 17 Op. O.L.C. at 121. The acceptance of an Emolument barred by the Clause is prohibited unless Congress chooses to permit an exception. Id. Given the “sweeping and unqualified” Constitutional mandate, the President has “no discretion . . . no authority to determine whether to perform the duty” to not accept any Emolument until Congress gives its consent. Swan, 100 F.3d at 977. Accordingly, seeking congressional consent prior to accepting prohibited foreign emoluments is a ministerial duty. Id. The President’s argument regarding the “judgment” and “planning” needed to ensure compliance with the Clause is beside the point. It may take judgment and planning to comply with the Clause, but he has no discretion as to whether or not to comply with it in the first instance. See id. The President complains about the “significant
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burdens” an injunction requiring him to comply with the Clause

would impose. Reply, ECF No. 28 at 32. However, as discussed

supra Section IV.D.1, the correct inquiry is not whether

injunctive relief requiring the President to comply with the

Constitution would burden him, but rather whether allowing this

case to go forward would interfere with his ability to ensure

that the laws be faithfully executed. See Clinton, 520 U.S. at

718 (Breyer, J., concurring in the judgment). Accordingly, the

injunctive relief sought in this case is constitutional.

V. Conclusion

For the reasons discussed above, the Court finds that:

(1) plaintiffs have stated a claim against the President for

allegedly violating the Foreign Emoluments Clause;

(2) plaintiffs have a cause of action to seek injunctive relief

against the President; and (3) the injunctive relief sought is

constitutional. The Court therefore DENIES the portions of the

motion to dismiss that were deferred in the Court’s prior Order.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge April 30, 2019

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 Case 1:17-cv-01154-EGS Document 82 Filed 06/25/19 Page 1 of 12

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________

)

Senator RICHARD BLUMENTHAL,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)Civil Action No. 17-1154 (EGS)

)

DONALD J. TRUMP, in his official )

capacity as President of the

)

United States,

)

)

Defendant.

)

_________________________________)

MEMORANDUM OPINION AND ORDER

The Court has issued two previous Opinions in this case. In

its September 28, 2018 Opinion, the Court held that plaintiffs,

approximately 201 Members of the 535 Members of the United

States Senate and House of Representatives, had standing to sue

defendant Donald J. Trump in his official capacity as President

of the United States (“the President”) for alleged violations of

the Foreign Emoluments Clause (“the Clause”). See Blumenthal v.

Trump, 335 F. Supp. 3d 45, 72 (D.D.C. 2018). In its April 30,

2019 Opinion, the Court held that: (1) the term “Emolument” is

broadly defined as any profit, gain, or advantage;

(2) plaintiffs stated a plausible claim against the President

for violations of the Clause; (3) plaintiffs have a cause of

action to seek injunctive relief to prevent the President’s

violations of the Clause; and (4) the relief plaintiffs seek—an

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injunction against the President—is constitutional. See Blumenthal v. Trump, 373 F. Supp. 3d 191, 207, 211, 212 (D.D.C. 2019).
Pending before the Court are the President’s motions for
certification for interlocutory appeal of the Court’s September 28, 2018 Order, ECF No. 60;1 and April 30, 2019 Order, ECF No.
71-1. The President also moves to stay proceedings while the
Court considers the motions and pending appeal if the Court
grants them. Id. at 25. Upon careful consideration of the President’s motions, the oppositions and replies thereto, and for the reasons explained below, the Court DENIES the President’s motions.2
A District Court may certify an interlocutory order for
immediate appeal if the judge is “of the opinion that such order
involves [1] a controlling question of law [2] as to which there
is substantial ground for difference of opinion and [3] that an
immediate appeal from the order may materially advance the
1 The President filed his first motion for certification of interlocutory appeal before the Court had ruled on all the issues the President raised in his motion to dismiss the complaint. To conserve judicial resources, the Court declined to consider the first motion until it had ruled on all the issues raised in the motion to dismiss as the ruling could have rendered the motion for certification of interlocutory appeal moot. The President’s argument in his initial brief that the Court of Appeals could render a quick decision on the single issue of standing, Def.’s Reply, ECF No. 62 at 4, is therefore moot. 2 The Court thanks amici for their submission.
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ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Through section 1292(b), “Congress ... chose to confer on District Courts first line discretion” and “circumscribed authority to certify for immediate appeal interlocutory orders deemed pivotal and debatable.” Swint v. Chambers County Comm'n, 514 U.S. 35, 46, 47 (1995). The availability of immediate appeal of interlocutory orders subject to the requirements of section 1292(b) is an “exception to the firm final judgment rule governing federal courts.” Trout v. Garrett, 891 F.2d 332, 335 (D.C. Cir. 1989). Accordingly, a party seeking certification pursuant to section 1292(b) must meet a high standard to overcome the “strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.” United States v. Nixon, 418 U.S. 683, 690 (1974). “Although courts have discretion to certify an issue for interlocutory appeal, . . . interlocutory appeals are rarely allowed [and] the movant ‘bears the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of final judgement.’” Virtual Def. and Dev. Int'l, Inc. v. Republic of Moldova, 133 F. Supp. 2d 9, 22 (D.D.C. 2001) (citing First Am. Corp. v. Al–Nahyan, 948 F. Supp. 1107 (D.D.C. 1996)). Finally, “[t]he moving party bears the burden of establishing all three elements” of the provisions of section 1292(b). U.S.
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House of Representatives v. Burwell, No. 14-1967, 2015 WL 13699275, at *1 (D.D.C. Oct. 19, 2015) (citing Nat’l Cmty. Reinvestment Coal. v. Accredited Home Lenders Holding Co., 597 F. Supp. 2d 120, 121 (D.D.C. 2009)); see also Butler v. DirectSat USA, LLC, 307 F.R.D. 445, 452 (“Unless all of the statutory criteria are satisfied . . . ‘the district court may not and should not certify its order . . . under section 1292(b).’”) (citing Ahrenholz v. Bd. of Trs. of the Univ. of Ill., 219 F.3d 674, 676 (7th Cir.)).
The President contends that the Court’s Orders involve four controlling questions of law: (1) whether plaintiffs have standing to sue, Def.’s Statement of P. & A. in Supp. of Mot. for Certification (“Def.’s Br.”) ECF No. 60-1 at 83; (2) whether plaintiffs have an equitable cause of action; (3) whether the Court can order the declaratory and injunctive relief sought; and (4) the meaning of the Clause, Def.’s Suppl. Br. in Supp. of His Mot. (“Def.’s Suppl. Br.”), ECF No. 71-1 at 10.
Despite bearing the burden of establishing all three elements of section 1292(b), the President has made little effort to demonstrate the third element—that “an immediate appeal from the [Court’s Orders] may materially advance the
3 When citing electronic filings throughout this Memorandum Opinion and Order, the Court cites to the ECF header page number, not the original page number of the filed document.
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ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The President contends that this element is met because there are substantial grounds for difference of opinion as to whether plaintiffs have standing to sue and if the Court was reversed on this issue, the case would be terminated for lack of jurisdiction. Def.’s Br., ECF No. 60-1 at 23. The President also states that “[r]esolution of either of the two threshold justiciability questions [whether plaintiffs have standing to sue and whether plaintiffs have an equitable cause of action] in the President’s favor would terminate this suit. And if the Court of Appeals agrees with the President’s interpretation of the Foreign Emoluments Clause, the case would be substantially narrowed, if not over.” Def.’s Suppl. Br., ECF No. 71-1 at 7.
But as plaintiffs point out, if reversal by the Court of Appeals were the standard for meeting this element of the section 1292(b) test, “every denial of a defendant’s dispositive motion would merit an interlocutory appeal.” Pls.’ Opp’n, ECF No. 61 at 12 (citing Educ. Assistance Found. v. United States, No. 11-1573, 2014 WL 12780253, at *3 (D.D.C. Nov. 21, 2014) (“Any immediate appeal under an interlocutory order could affect the conduct of litigation and avoid unnecessary litigation.”). Furthermore, the President’s “contention that certification of this Court’s Orders for interlocutory appeal will materially advance this litigation necessarily assumes that [he] will
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prevail on appeal.” Judicial Watch Inc. v. Nat’l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 28 (D.D.C. 2002).
To determine whether the third element has been met, the Court considers whether an immediate appeal “would likely and materially advance the ultimate determination” of the litigation. Educ. Assistance Found., 2014 WL 12780253, at *3 (quoting McKenzie v. Kennickell, No. 73-0974, 1986 WL 32653, at *2 (D.D.C. Oct. 27, 1986); see also Burwell, 2015 WL 13699275, at *1 (noting that the third element was not satisfied where the case could be “decided in a matter of months—likely before an interlocutory appeal could even be decided”). The Court also considers whether “[a]n immediate appeal would conserve judicial resources and spare the parties from possibly needless expense.” APCC Services Inc. v. AT&T Corp., 297 F. Supp. 2d 90, 100 (D.D.C. 2003).
Here, the parties agree that all of the issues in this case can be resolved on cross motions for summary judgment. See Local Rule 16.3 Report, ECF No. 75 at 3. Plaintiffs have proposed a three month time period for discovery commencing June 28, 2019 and concluding September 27, 2019. Id. at 6. The President states that “fact discovery should not commence unless the Court denies the motion for interlocutory appeal,” id. at 7, and the parties agree on a proposed briefing schedule that would be complete within another three months, id. at 5.
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The parties agree, therefore, that discovery will conclude and cross motions for summary judgment will be fully briefed within six months. Once the cross motions are ripe, the Court will be able to resolve them expeditiously thereby terminating the case. In view of this abbreviated discovery and briefing schedule, the President has not “carried [his] burden of demonstrating that interlocutory appeal of this question at this point in time would materially advance the litigation as a whole.” Judicial Watch, 233 F. Supp. 2d at 29. This discovery and briefing schedule stands in stark contrast to cases in this district where Courts have found the moving party to have met the burden of establishing the third element of the section 1292(b) test. For example, in Molock v. Whole Foods Market Group, Judge Mehta observed that “[d]iscovery in this case, in its present form, promises to be drawn out, complex, and expensive” and that “[t]he potential time and expense of obtaining such discovery is staggering.” 317 F. Supp. 3d 1, at *7 (D.D.C. 2018). In APCC Services Inc., Judge Huvelle found the third element of the section 1292(b) test to be satisfied in protracted litigation where discovery had been ongoing “more than four years after the filing of the suit” and where the significant costs of discovery were expected to “exceed any possible damages award.” 297 F. Supp. at 100.
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The President asserts that “‘[w]hen there are substantial grounds for difference of opinion as to a court’s subject matter jurisdiction, courts regularly hold that immediate appeal may materially advance the ultimate termination of the litigation.’” Def.’s Br., ECF No. 60-1 at 23 (quoting Al Maqaleh v. Gates, 620 F. Supp. 2d 51, 55 (D.D.C. 2009)) (citing APCC Services Inc., 297 F. Supp. 2d at 109 and Lemery v. Ford Motor Co., 244 F. Supp. 2d 720, 728 (S.D. Tex. 2002)). This Court does not read the cited cases to support such a broad proposition and finds the facts here to be distinguishable. The Court has explained Judge Huvelle’s reasoning in APCC Services Inc. for finding this element to have been satisfied supra, and in Lemery, the Court found this element to be satisfied with little analysis in a products liability case where there would be protracted discovery at “tremendous expense.” 244 F. Supp. 2d at 728. Neither situation is the case here. Furthermore, although in each case, the question for certification involved a jurisdictional issue, that was not the sole reason the Court found this element to be satisfied and for granting the motion.
The President also argues that the cases plaintiffs cite in support of their argument actually support his position because each of the cases was in a late stage and “certain to conclude in relatively short order through a resolution of summary judgment motions or a brief trial.” Def.’s Reply, ECF No. 62 at
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5. The Court disagrees that the cases provide support for the President’s position. Rather, these cases are more similar to the situation here, where even though discovery has not begun, it will be scheduled to conclude and cross motions for summary judgment to be fully briefed within six months. See Burwell, 2015 WL 13699275 at *1 (denying motion for certification because “[u]nlike typical civil litigation, where the denial of a motion to dismiss would be followed by months or even years of discovery, this case is presently suited for summary disposition,” which could be decided “in a matter of months”); United States ex rel. Barko v. Halliburton Co., 4 F. Supp. 3d 162, 167 (D.D.C. 2014) (denying motion for certification in part because “[t]o pause litigation so close to the end of discovery and so near the deadline for summary judgment briefing would waste judicial resources.”). While some of the cases cited were poised for a quicker resolution than is the case here, see Washington Tennis & Educ. Found., Inc. v. Clark Nexsen, Inc., 324 F. Supp. 3d, 128, 146 (D.D.C. 2018) (“Once calendared, trial on Defendant’s counterclaim can be accomplished in less than a week.”); Brown v. Pro Football Inc., 812 F. Supp. 237, 239 (D.D.C. 1992) (“Given that the trial on damages is imminent, it is evident that it would not expedite the ultimate termination of this litigation to delay proceedings for an interlocutory appeal.”); Singh v. George Washington Univ., 383 F. Supp. 2d 99,
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Case 1:17-cv-01154-EGS Document 82 Filed 06/25/19 Page 10 of 12
105 (D.D.C. 2005) (“With this litigation poised for a relatively short, limited trial, it would not materially advance the termination of the litigation to authorize a piecemeal appeal.”), this case will be poised for resolution within six months; an immediate appeal would hardly materially advance its ultimate termination.
Since the President has failed to meet his burden of establishing “that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” 28 U.S.C. § 1292(b), the Court need not consider whether the President has met his burden of establishing the other two criteria for certifying an order for an immediate appeal. See Educ. Assistance Found., 2014 WL 12780253, at *3 (“The plaintiff having failed to establish that the Court’s ruling on the admissibility of the subject document presents a controlling question of law, and that an interlocutory appeal would materially advance the litigation, the Court need not consider whether there exists a substantial ground for a difference of opinion regarding the document’s admissibility.”) (citing 28 U.S.C. § 1292(b) and Ahrenholz, 219 F.3d at 676 (“Unless all these criteria are satisfied, the district court may not and should not certify its order to us for an immediate appeal under section 1292(b).”); Baylor v. Mitchell Rubenstein & Assocs., No. 13-1995, 2014 WL 12644263, at *2 (D.D.C. July 30, 2014) (“But
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Case 1:17-cv-01154-EGS Document 82 Filed 06/25/19 Page 11 of 12
even if the Court were able to find that substantial grounds for difference of opinion did exist, it would nonetheless deny the motion for certification because plaintiff has not demonstrated that this case satisfies section 1292(b)'s third requirement: ‘that an immediate appeal from the order may materially advance the ultimate termination of the litigation.’”) (citation omitted).
The President argues that the exceptional circumstances of this case make certification for interlocutory appeal appropriate. See Def.’s Br., ECF No. 60-1 at 10-13. But “even if the circumstances [are] truly extraordinary . . . that would favor certification only if all the criteria required by § 1292(b) are otherwise met.” District of Columbia v. Trump, 344 F. Supp. 3d 828, 842 (D. Md. 2018). As explained above, the President has failed to meet his burden of demonstrating the third element of the section 1292(b) test.
The President also moves to stay proceedings: (1) while the Court considers the section 1292(b) motions; and (2) pending appeal if the Court grants the motions. Def.’s Suppl. Br., ECF No. 71-1 at 25. Because the Court has denied the President’s motions for certification, his request to stay proceedings pending consideration of the motions and pending appeal if the motion is granted are DENIED as MOOT.
11

Case 1:17-cv-01154-EGS Document 82 Filed 06/25/19 Page 12 of 12

Accordingly, it is hereby

ORDERED that [60] the President’s motion for certification

for interlocutory appeal of the Court’s September 28, 2018 Order

is DENIED; and it is further

ORDERED that [71] the President’s motion for certification

for interlocutory appeal of the Court’s April 30, 2019 Order and

for stay is DENIED.

SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge June 25, 2019

12

 
 Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 1 of 59

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Senator RICHARD BLUMENTHAL 706 Hart Senate Office Building Washington, D.C. 20510,
Representative JERROLD NADLER 2132 Rayburn House Office Building Washington, D.C. 20515,
Senator RICHARD J. DURBIN 711 Hart Senate Office Building Washington, D.C. 20510,
Senator PATTY MURRAY 154 Russell Senate Office Building Washington, D.C. 20510,
Senator ELIZABETH WARREN 309 Hart Senate Office Building Washington, D.C. 20510,
Senator AMY KLOBUCHAR 425 Dirksen Senate Office Building Washington, D.C. 20510,
Senator BERNARD SANDERS 332 Dirksen Senate Office Building Washington, D.C. 20510,
Senator PATRICK LEAHY 437 Russell Senate Office Building Washington, D.C. 20510,
Senator SHELDON WHITEHOUSE 530 Hart Senate Office Building Washington, D.C. 20510,
Senator CHRISTOPHER A. COONS 218 Russell Senate Office Building Washington, D.C. 20510,
Senator MAZIE K. HIRONO 713 Hart Senate Office Building Washington, D.C. 20510,

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Civil Action No. 17-1154 (EGS)

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 2 of 59

Senator CORY A. BOOKER

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717 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator KAMALA D. HARRIS

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112 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator MICHAEL F. BENNET

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261 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator MARIA CANTWELL

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511 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator BENJAMIN L. CARDIN

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509 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TOM CARPER

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513 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CATHERINE CORTEZ MASTO

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516 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TAMMY DUCKWORTH

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524 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator KIRSTEN E. GILLIBRAND

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478 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator MARTIN HEINRICH

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303 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TIM KAINE

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231 Russell Senate Office Building

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Washington, D.C. 20510,

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Senator EDWARD J. MARKEY

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255 Dirksen Senate Office Building

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Washington, D.C. 20510,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 3 of 59

Senator JEFF MERKLEY

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313 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CHRIS MURPHY

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136 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator JACK REED

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728 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator BRIAN SCHATZ

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722 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator TOM UDALL

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531 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator CHRIS VAN HOLLEN

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110 Hart Senate Office Building

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Washington, D.C. 20510,

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Senator RON WYDEN

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221 Dirksen Senate Office Building

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Washington, D.C. 20510,

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Representative NANCY PELOSI

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1236 Longworth House Office Building

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Washington, D.C. 20515,

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Representative STENY H. HOYER

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1705 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JAMES E. CLYBURN

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200 Cannon House Office Building

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Washington, D.C. 20515,

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Representative KATHERINE CLARK

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2448 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ZOE LOFGREN

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1401 Longworth House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 4 of 59

Representative SHEILA JACKSON LEE

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2079 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative STEVE COHEN

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2104 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative HENRY C. “HANK”

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JOHNSON JR.

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2240 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative TED DEUTCH

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2447 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative KAREN BASS

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2059 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative CEDRIC L. RICHMOND

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506 Cannon House Office Building Washington, D.C. 20515,

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Representative HAKEEM JEFFRIES

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2433 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DAVID N. CICILLINE

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2233 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ERIC SWALWELL

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407 Cannon House Office Building

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Washington, D.C. 20515,

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Representative TED W. LIEU

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403 Cannon House Office Building

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Washington, D.C. 20515,

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Representative JAMIE RASKIN

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412 Cannon House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 5 of 59

Representative PRAMILA JAYAPAL

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1510 Longworth House Office Building

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Washington, D.C. 20515,

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Representative VAL BUTLER DEMINGS

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217 Cannon House Office Building

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Washington, D.C. 20515,

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Representative J. LUIS CORREA

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1039 Longworth House Office Building

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Washington, D.C. 20515

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Representative MARY GAY SCANLON

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1535 Longworth House Office Building

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Washington, D.C. 20515,

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Representative SYLVIA GARCIA

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1620 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JOE NEGUSE

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1419 Longworth House Office Building

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Washington, D.C. 20515,

) )

Representative GREG STANTON

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128 Cannon House Office Building

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Washington, D.C. 20515,

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Representative MADELINE DEAN

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129 Cannon House Office Building

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Washington, D.C. 20515,

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Representative DEBBIE MUCARSEL-

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POWELL

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114 Cannon House Office Building

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Washington, D.C. 20515,

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Representative VERONICA ESCOBAR

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1505 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ALMA ADAMS

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2436 Rayburn House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 6 of 59

Representative PETE AGUILAR

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109 Cannon House Office Building

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Washington, D.C. 20515,

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Representative NANETTE DIAZ

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BARRAGÁN

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1030 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JOYCE BEATTY

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2303 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative AMI BERA

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1727 Longworth House Office Building

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Washington, D.C. 20515,

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Representative DONALD S. BEYER, JR.

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1119 Longworth House Office Building

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Washington, D.C. 20515,

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Representative SANFORD D. BISHOP JR.

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2407 Rayburn House Office Building Washington, D.C. 20515,

) ) )

Representative EARL BLUMENAUER

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1111 Longworth House Office Building

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Washington, D.C. 20515,

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Representative LISA BLUNT ROCHESTER )

1519 Longworth House Office Building

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Washington, D.C. 20515,

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Representative SUZANNE BONAMICI

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2231 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative BRENDAN F. BOYLE

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1133 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ANTHONY BROWN

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1323 Longworth House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 7 of 59

Representative JULIA BROWNLEY

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2262 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative CHERI BUSTOS

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1233 Longworth House Office Building

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Washington, D.C. 20515,

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Representative G.K. BUTTERFIELD

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2080 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative SALUD O. CARBAJAL

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1431 Longworth House Office Building

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Washington, D.C. 20515,

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Representative TONY CÁRDENAS

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2438 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ANDRÉ CARSON

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2135 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative SEAN CASTEN

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429 Cannon House Office Building

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Washington, D.C. 20515,

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Representative KATHY CASTOR

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2052 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JOAQUIN CASTRO

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2241 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JUDY CHU

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2423 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative GILBERT R. CISNEROS, JR.

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431 Cannon House Office Building

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Washington, D.C. 20515,

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Representative YVETTE D. CLARKE

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2058 Rayburn House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 8 of 59

Representative WILLIAM LACY CLAY

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2428 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative EMANUEL CLEAVER, II

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2335 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative GERALD E. CONNOLLY

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2238 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JIM COOPER

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1536 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JIM COSTA

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2081 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JOE COURTNEY

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2332 Rayburn House Office Building

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Washington, D.C. 20515,

) )

Representative CHARLIE CRIST

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215 Cannon House Office Building

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Washington, D.C. 20515,

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Representative ELIJAH E. CUMMINGS

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2163 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DANNY K. DAVIS

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2159 Rayburn House Office Building

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Washington, D.C. 20515,

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)

Representative SUSAN A. DAVIS

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1214 Longworth House Office Building

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Washington, D.C. 20515,

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Representative PETER DEFAZIO

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2134 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DIANA DEGETTE

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2111 Rayburn House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 9 of 59

Representative ROSA L. DELAURO

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2413 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative SUZAN K. DELBENE

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2330 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative MARK DESAULNIER

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503 Cannon House Office Building

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Washington, D.C. 20515,

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Representative DEBBIE DINGELL

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116 Cannon House Office Building

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Washington, D.C. 20515,

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Representative LLOYD DOGGETT

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2307 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative MICHAEL F. DOYLE

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306 Cannon House Office Building

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Washington, D.C. 20515,

) )

Representative ELIOT L. ENGEL

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2426 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative ANNA G. ESHOO

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202 Cannon House Office Building

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Washington, D.C. 20515,

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Representative ADRIANO ESPAILLAT

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1630 Longworth House Office Building

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Washington, D.C. 20515,

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Representative DWIGHT EVANS

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1105 Longworth House Office Building

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Washington, D.C. 20515,

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Representative BILL FOSTER

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2366 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative LOIS FRANKEL

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2305 Rayburn House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 10 of 59

Representative MARCIA L. FUDGE

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2344 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative TULSI GABBARD

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1433 Longworth House Office Building

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Washington, D.C. 20515,

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Representative RUBEN GALLEGO

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1131 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JOHN GARAMENDI

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2368 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JESÚS G. “CHUY” GARCÍA )

530 Cannon House Office Building

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Washington, D.C. 20515,

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Representative JIMMY GOMEZ

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1530 Longworth House Office Building

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Washington, D.C. 20515,

) )

Representative AL GREEN

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2347 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative RAUL M. GRIJALVA

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1511 Longworth House Office Building

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Washington, D.C. 20515,

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Representative DEBRA HAALAND

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1237 Longworth House Office Building

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Washington, D.C. 20515,

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)

Representative JOSH HARDER

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131 Cannon House Office Building

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Washington, D.C. 20515,

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Representative ALCEE L. HASTINGS

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2353 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative JAHANA HAYES

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1415 Longworth House Office Building

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Washington, D.C. 20515,

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Representative DENNY HECK

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2452 Rayburn Office Building

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Washington, D.C. 20515,

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Representative BRIAN HIGGINS

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2459 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative KATIE HILL

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1130 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JAMES A. HIMES

) )

1227 Longworth House Office Building

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Washington, D.C. 20515,

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Representative JARED HUFFMAN

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1527 Longworth House Office Building

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Washington, D.C. 20515,

)

Representative EDDIE BERNICE JOHNSON )

2306 Rayburn House Office Building

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Washington, D.C. 20515,

) )

Representative MARCY KAPTUR

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2186 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative WILLIAM R. KEATING

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2351 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative ROBIN L. KELLY

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2416 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative JOSEPH P. KENNEDY III

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304 Cannon House Office Building

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Washington, D.C. 20515,

)

Representative RO KHANNA

) )

221 Cannon House Office Building

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Washington, D.C. 20515,

)

Representative DANIEL T. KILDEE

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203 Cannon House Office Building

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Washington, D.C. 20515,

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 12 of 59

Representative DEREK KILMER

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1410 Longworth House Office Building

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Washington, D.C. 20515,

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Representative ANN KIRKPATRICK

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309 Cannon House Office Building

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Washington, D.C. 20515,

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Representative RAJA KRISHNAMOORTHI )

115 Cannon House Office Building

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Washington, D.C. 20515,

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Representative JAMES R. LANGEVIN

) )

2077 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative RICK LARSEN

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2113 Rayburn House Office Building

) )

Washington, D.C. 20515,

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Representative JOHN B. LARSON

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1501 Longworth House Office Building

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Washington, D.C. 20515,

) )

Representative BRENDA L. LAWRENCE

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2463 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative AL LAWSON

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1406 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative BARBARA LEE

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2470 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative ANDY LEVIN

)

228 Cannon House Office Building

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Washington, D.C. 20515,

)

Representative MIKE LEVIN

) )

1626 Longworth House Office Building

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Washington, D.C. 20515,

)

Representative JOHN LEWIS

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300 Cannon House Office Building

) )

Washington, D.C. 20515,

)

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 13 of 59

Representative DAVE LOEBSACK

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1211 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative ALAN LOWENTHAL

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108 Cannon House Office Building

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Washington, D.C. 20515,

)

)

Representative NITA M. LOWEY

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2365 Rayburn House Office Building

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Washington, D.C. 20515,

)

Representative BEN RAY LUJÁN

) )

2323 Rayburn House Office Building

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Washington, D.C. 20515,

)

Representative STEPHEN LYNCH

)

2109 Rayburn House Office Building

) )

Washington, D.C. 20515,

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Representative CAROLYN B. MALONEY

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2308 Rayburn House Office Building

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Washington, D.C. 20515,

) )

Representative SEAN PATRICK MALONEY )

2331 Rayburn House Office Building

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Washington, D.C. 20515,

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Representative DORIS MATSUI

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2311 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative BETTY MCCOLLUM

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2256 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative A. DONALD MCEACHIN

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314 Cannon House Office Building

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Washington, D.C. 20515,

)

Representative JAMES P. MCGOVERN

) )

408 Cannon House Office Building

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Washington, D.C. 20515,

)

Representative ANN MCLANE KUSTER

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320 Cannon House Office Building

) )

Washington, D.C. 20515,

)

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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 14 of 59

Representative JERRY MCNERNEY

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2265 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative GREGORY W. MEEKS

)

2310 Rayburn House Office Building

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Washington, D.C. 20515,

)

)

Representative GRACE MENG

)

2209 Raybur House Office Building

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Washington, D.C. 20515,

)

Representative GWEN S. MOORE

) )

2252 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative JOSEPH D. MORELLE

)

1317 Longworth House Office Building

) )

Washington, D.C. 20515,

)

Representative SETH MOULTON

)

1127 Longworth House Office Building

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Washington, D.C. 20515,

) )

Representative GRACE F. NAPOLITANO

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1610 Longworth House Office Building

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Washington, D.C. 20515,

)

)

Representative RICHARD E. NEAL

)

2309 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative DONALD NORCROSS

)

2437 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ALEXANDRIA OCASIO-

)

CORTEZ

)

229 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative ILHAN OMAR

)

1517 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

14

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 15 of 59

Representative FRANK PALLONE, JR.

)

2107 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative JIMMY PANETTA

)

212 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative BILL PASCRELL, JR.

)

2409 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative DONALD M. PAYNE, JR.

) )

103 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative ED PERLMUTTER

)

1226 Longworth House Office Building

) )

Washington, D.C. 20515,

)

Representative SCOTT H. PETERS

)

2338 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative DEAN PHILLIPS

)

1305 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative CHELLIE PINGREE

)

2162 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MARK POCAN

)

1421 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative AYANNA PRESSLEY

)

1108 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative DAVID E. PRICE

) )

2108 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative MIKE QUIGLEY

)

2458 Rayburn House Office Building

) )

Washington, D.C. 20515,

)

15

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 16 of 59

Representative KATHLEEN M. RICE

)

2435 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative HARLEY ROUDA

)

2300 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative LUCILLE ROYBAL-

)

ALLARD

)

2083 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative C. A. DUTCH

)

RUPPERSBERGER

)

2206 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative BOBBY L. RUSH

)

2188 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative TIM RYAN 1126 Longworth House Office Building

) ) )

Washington, D.C. 20515,

)

Representative LINDA T. SÁNCHEZ

)

2329 Rayburn House Office Building

)

Washington, D.C. 20515,

) )

Representative JOHN P. SARBANES

)

2370 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative JAN SCHAKOWSKY

)

2367 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ADAM B. SCHIFF

)

2269 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative BRADLEY S. SCHNEIDER

) )

1432 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

16

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 17 of 59

Representative ROBERT C. “BOBBY”

)

SCOTT

)

1201 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JOSÉ E. SERRANO

)

2354 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative TERRI SEWELL

)

2201 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative DONNA E. SHALALA

) )

1320 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative BRAD SHERMAN

)

2181 Rayburn House Office Building Washington, D.C. 20515,

) ) )

Representative ALBIO SIRES

)

2268 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative ADAM SMITH

)

2264 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative DARREN SOTO

)

1507 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative JACKIE SPEIER

)

2465 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative MARK TAKANO 420 Cannon House Office Building Washington, D.C. 20515,

) ) ) )

Representative BENNIE G. THOMPSON

)

2466 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

17

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 18 of 59

Representative MIKE THOMPSON

)

406 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Representative DINA TITUS

)

2464 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative RASHIDA TLAIB

)

1628 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative PAUL D. TONKO

)

2369 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative NORMA J. TORRES

)

2444 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative LORI TRAHAN

)

1616 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative JUAN VARGAS

)

2244 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative MARC VEASEY

)

2348 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative FILEMON VELA

)

307 Cannon House Office Building

)

Washington, D.C. 20515,

)

Representative NYDIA M. VELÁZQUEZ

)

2302 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative DEBBIE WASSERMAN

)

SCHULTZ

)

1114 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

18

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 19 of 59

Representative MAXINE WATERS

)

2221 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative BONNIE WATSON

)

COLEMAN

)

2442 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative PETER WELCH

)

2187 Rayburn House Office Building

)

Washington, D.C. 20515,

)

)

Representative JENNIFER WEXTON

)

1217 Longworth House Office Building

)

Washington, D.C. 20515,

)

Representative SUSAN WILD

)

1607 Longworth House Office Building

)

Washington, D.C. 20515,

)

)

Representative FREDERICA S. WILSON

)

2445 Rayburn House Office Building

)

Washington, D.C. 20515,

)

Representative JOHN YARMUTH

)

402 Cannon House Office Building

)

Washington, D.C. 20515,

)

)

Plaintiffs,

)

)

v.

)

DONALD J. TRUMP, in his official capacity )

as President of the United States of America )

1600 Pennsylvania Avenue, N.W.

)

Washington, D.C. 20500,

)

)

Defendant.

)

_____________________________________

SECOND AMENDED COMPLAINT Senator Richard Blumenthal and Representative Jerrold Nadler, along with 213 other members of Congress, for their complaint against Donald J. Trump, in his official capacity as President of the United States of America, allege as follows:
19

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 20 of 59
I. INTRODUCTION 1. Plaintiffs, 29 members of the United States Senate and 186 members of the United States House of Representatives, bring this action against President Donald J. Trump to obtain relief from the President’s continuing violation of the Foreign Emoluments Clause of the United States Constitution, which was designed to ensure that our nation’s leaders would not be corrupted by foreign influence or put their own financial interests over the national interest. To achieve those aims, the 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.”1 Through this measure, the nation’s Founders invested members of Congress with an important role in preventing the corruption and foreign influence that the Founders sought to avoid— permitting federal officeholders to accept otherwise prohibited “Emolument[s]” only if they first received “the Consent of the Congress.” 2. Defendant, President Donald J. Trump, has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments. By virtue of that financial interest, Defendant has accepted, or necessarily will accept, “Emolument[s]” from “foreign State[s]” while holding the office of President of the United States. 3. Because the Foreign Emoluments Clause requires the President to obtain “the Consent of the Congress” before accepting otherwise prohibited “Emolument[s],” Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds their “Consent” before the President accepts any such “Emolument.”
1 U.S. Const. art. I, § 9, cl. 8. 20

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 21 of 59
4. Despite this constitutional mandate, Defendant has chosen to accept numerous benefits from foreign states without first seeking or obtaining congressional approval. Indeed, he has taken the position that the Foreign Emoluments Clause does not require him to obtain such approval before accepting benefits arising out of exchanges between foreign states and his businesses. Because Defendant has failed to come to Congress and seek its consent for at least some foreign emoluments that have been the subject of public reporting, it is impossible to know whether Defendant has also accepted, or plans to accept, other foreign emoluments that have not yet been made public. By accepting these benefits from foreign states without first seeking or obtaining congressional approval, Defendant has thwarted the transparency that the “Consent of the Congress” provision was designed to provide.
5. Moreover, by accepting these benefits from foreign states without first seeking or obtaining congressional approval, Defendant has also denied Plaintiffs the opportunity to give or withhold their “Consent” to his acceptance of individual emoluments and has injured them in their roles as members of Congress.
6. To redress that injury, Plaintiffs seek declaratory relief establishing that Defendant violates the Constitution when he accepts any monetary or nonmonetary benefit—any “present, Emolument, Office, or Title, of any kind whatever”—from a foreign state without first obtaining “the Consent of the Congress.” Plaintiffs also seek injunctive relief ordering Defendant not to accept any such benefits from a foreign state without first obtaining “the Consent of the Congress.”
II. PARTIES, JURISDICTION, AND VENUE 7. Richard Blumenthal is a United States Senator who represents the state of Connecticut. Senator Blumenthal is the Ranking Member of the Subcommittee on Oversight,
21

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 22 of 59
Agency Action, Federal Rights and Federal Courts of the Senate Judiciary Committee. 8. Jerrold Nadler is a United States Representative who represents New York’s 10th
congressional district. Representative Nadler is the Chairman of the House Judiciary Committee. 9. Additional plaintiffs are the other 28 members of the United States Senate and
185 members of the United States House of Representatives whose names appear in the caption of this Complaint.
10. As members of Congress, Plaintiffs have been entrusted by the Constitution with the important role of determining when the President and other individuals who hold an “Office of Profit or Trust” under the United States may accept “Emolument[s]” from “foreign States.” By empowering members of Congress with this important gatekeeping role, the Founders provided a mechanism by which federal officeholders could accept benefits from foreign governments in appropriate circumstances while still maintaining a structural safeguard against corruption and foreign influence.
11. Defendant Donald J. Trump is the President of the United States of America and thus holds an “Office of Profit or Trust” under the United States. He is being sued in his official capacity as President of the United States.
12. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 2201. 13. Venue is proper in this Court 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 District of Columbia is a “judicial district” in which the “defendant in the action resides,” in which “a substantial part of the events or omissions giving rise to the claim occurred,” and in which “a substantial part of property that is the subject of the action is situated.” For example, Trump International Hotel Washington, D.C., which is central to some
22

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 23 of 59
of Plaintiffs’ allegations, is located in this district. III.
BACKGROUND 14. Article I, Section 9, Clause 8 of the U.S. Constitution provides: “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.” Commonly known as the “Foreign Emoluments Clause,” this provision reflects the Founders’ deep concern that corruption and foreign influence could undermine the new republic and harm the American people. 15. Because the Founders believed that corruption was one of the gravest threats to the new nation, they viewed anti-corruption measures as essential to preserving an enduring republican system of government. As George Mason warned his fellow delegates at the Constitutional Convention, “if we do not provide against corruption, our government will soon be at an end.”2 Thus, in drafting the Constitution, the Founders sought to ensure that “corruption was more effectually guarded against, in the manner this government was constituted, than in any other that had ever been formed.”3 Alexander Hamilton explained that “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”4 16. This preoccupation with stemming corruption, born of the Founders’ experience
2 1 The Records of the Federal Convention of 1787, at 392 (Max Farrand ed., 1911) [hereinafter “Convention Records”].
3 4 Debates in the Several State Conventions on the Adoption of the Federal Constitution 302 (Jonathan Elliot ed., 1836) [hereinafter “Elliot’s Debates”] (Charles Cotesworth Pinckney).
4 The Federalist No. 68, at 411 (Clinton Rossiter ed., Signet Classics 2003). 23

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 24 of 59
under British rule, pervaded the debates at the Constitutional Convention. According to James Madison’s notes of the Convention, fifteen delegates used the word “corruption” no fewer than fifty-four times,5 and corruption was a topic of discussion on almost a quarter of the days that the Convention was in session.6 The Founders wanted to ensure that in the United States, unlike in Britain, the nation’s leaders would be dependent on the people alone—not on those who would give them financial benefits—and would be motivated solely by the national interest, not their own personal interests. To promote that goal, the Founders included in the nation’s new charter a number of safeguards against corruption. These safeguards took the form of “procedural devices and organizational arrangements” meant to ward off “dependency, cabals, patronage, unwarranted influence, and bribery.”7
17. The Founders were also deeply worried that foreign powers would interfere with America’s internal affairs, undermining the nation’s republican institutions and making its leaders subservient to foreign interests. Alexander Hamilton wrote that one of the vulnerabilities of republics “is that they afford too easy an inlet to foreign corruption.”8 During the Constitutional Convention, Elbridge Gerry warned that “[f]oreign powers will intermeddle in our affairs, and spare no expence to influence them,”9 while Gouverneur Morris invoked “the melancholy picture of foreign intrusions as exhibited in the History of Germany,” and “urged it
5 James D. Savage, Corruption and Virtue at the Constitutional Convention, 56 J. Pol. 174, 181 (1994).
6 Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 352 (2009). 7 Savage, supra note 5, at 181; see id. at 177-82 (describing how fear of corruption influenced the structure of the electoral college, Congress’s power to impeach, the prohibition on members of Congress holding other offices, and the prohibition on acceptance of foreign emoluments). 8 The Federalist No. 22, at 145 (Clinton Rossiter ed., Signet Classics 2003). 9 2 Convention Records 268 (Gerry).
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as a standing lesson to other nations.”10 18. Of particular concern to the Founders was the risk that foreign states would give
benefits and rewards to the nation’s chief executive to subvert his loyalty. As Hamilton noted, the personal interest of a hereditary monarch was “so interwoven with that of the Nation . . . that he was placed above the danger of being corrupted from abroad.”11 By contrast, as Madison observed, an elected President would lack “that permanent stake in the public interest which would place him out of the reach of foreign corruption.”12 During the state debates over ratification of the Constitution, former delegate Charles Cotesworth Pinckney similarly explained that while “kings are less liable to foreign bribery and corruption . . . because no bribe that could be given them could compensate the loss they must necessarily sustain for injuring their dominions . . . . the situation of a President would be very different.” As a temporary officeholder, the President “might receive a bribe which would enable him to live in greater splendor in another country than his own; and when out of office, he was no more interested in the prosperity of his country than any other patriotic citizen.”13 This threat prompted the Founders to reject entrusting the treaty power solely to the President—susceptible as he was to foreign influence—and instead to require Senate approval, among other precautions.14
19. As the Founders saw it, the dangers of corruption and foreign influence were joined together in the contemporary European practice of diplomatic gift-giving. Eighteenthcentury ambassadors and ministers were typically bestowed lavish presents by the monarchs with
10 1 Convention Records 530 (Morris). 11 Id. at 289 (Hamilton). 12 Id. at 138 (Madison). 13 4 Elliot’s Debates 264 (Charles Cotesworth Pinckney). 14 See id. at 264-65.
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whom they dealt, often consisting of “jewels, plate, tapestry, or porcelain, or sometimes of money.”15 The “usual presents from the European Courts” varied by country, and “in Holland, it was customary to give a gold chain and medal; in France, a gold snuff-box; and in Spain, a picture.”16 America’s Founders, however, made a clean break from such customs as soon as they established their own national government under the Articles of Confederation, prohibiting “any person holding any office of profit or trust under the United States, or any of them” from “accept[ing] any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state.”17 Emphatically rejecting the custom of foreign gift acceptance, the Founders sought to cultivate undivided loyalty on the part of American officeholders. Absolute in its language, there was, in practice, only one exception to the ban: an officeholder could accept a foreign benefit if it was presented to Congress and if Congress approved of its receipt.18
20. This restriction on accepting foreign emoluments was one of the few measures to be transferred from the Articles of Confederation to the new Constitution in 1787, reflecting its importance to the Founding generation. At Philadelphia, the Foreign Emoluments Clause was added to the draft of the new Constitution by unanimous agreement of the state delegations after Charles Pinckney “urged the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.”19 In adding that Clause, the Founders largely borrowed
15 4 John Bassett Moore, A Digest of International Law 578 (1906) (quoting Letter from William Temple Franklin to Thomas Jefferson (Apr. 27, 1790)).
16 5 Annals of Cong. 1589 (1798) (Joseph Gales ed., 1834) (Bayard). 17 Articles of Confederation of 1781, art. VI, para. 1. 18 See Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 16 n.4 (1994) (citing instances under the Articles in which Congress consented to American officials’ acceptance of gifts from foreign monarchs); 5 Annals of Cong. 1585 (1798) (Otis) (citing officials who were offered gifts from foreign governments and presented those gifts to Congress for approval). 19 2 Convention Records 389; see id. at 384.
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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 27 of 59
the language of the precursor provision in the Articles of Confederation, but they made one important change: they “institutionalized the practice” that federal officeholders could accept otherwise prohibited emoluments from foreign states if they first obtained the consent of Congress.20
21. During ratification, Edmund Jennings Randolph emphasized the twin evils that the Clause was meant to avert, explaining that “[i]t 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.”21 A prominent contemporary pamphleteer urging ratification stressed the value of the Clause in similar terms: “The influence which foreign powers may attempt to exercise in our affairs was foreseen, and a wholesome provision has been made against it.”22 In sum, the Clause was “founded in a just jealousy of foreign influence of every sort.”23
22. Because the Founders wanted to eliminate “foreign influence of every sort,” they drafted the Clause with language “both sweeping and unqualified,”24 “prohibit[ing] those holding offices of profit or trust under the United States from accepting ‘any present, Emolument,
20 See Emoluments Clause, The Heritage Guide to the Constitution, http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause (last visited June 12, 2017).
21 3 Convention Records 327. 22 Tench Coxe, An Examination of the Constitution for the United States of America, No. 4 (Oct. 21, 1787), in The Federalist and Other Contemporary Papers on the Constitution of the United States 769 (E.H. Scott ed., 1894). 23 Joseph Story, Commentaries on the Constitution of the United States § 1352 (5th ed. 1891). 24 Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. at 17.
27

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 28 of 59
Office, or Title, of any kind whatever’ from ‘any . . . foreign State’ unless Congress consents.”25
Consistent with that broad language, the Clause has been understood to be “‘directed against
every kind of influence by foreign governments upon officers of the United States,’ in the
absence of consent by Congress.”26
23. Notably, the word “emolument” was defined broadly in the eighteenth century to
mean “profit,” “advantage,” “benefit,” and “comfort.”27 Contemporary writers used the term to
refer, among other things, to profits accruing from private commerce.28 Founding-era statesmen
including George Washington and James Madison likewise used the term when referring to “the
consequences of ordinary business dealings.”29 And Governor Randolph’s comments at the
Virginia Ratifying Convention, specifically addressing the Foreign Emoluments Clause,
25 Id. (quoting U.S. Const., art. I, § 9, cl. 8 (emphasis added by Office of Legal Counsel)). 26 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. 96, 98 (1986) (quoting 24 Op. Att’y Gen. 116, 117 (1902)). 27 Oxford English Dictionary (2d ed. 1989) (citing eighteenth-century texts for definition of “emolument” meaning “Advantage, benefit, comfort”); Samuel Johnson, A Dictionary of the English Language (1755) (defining “emolument” as “Profit; advantage”); see, e.g., Jonathan Swift, The Tale of a Tub 91 (Henry Morley ed., 1889) (1704) (“And so I proceed with great content of mind upon reflecting how much emolument this whole globe of earth is like to reap by my labours.”). 28 See, e.g., Samuel Johnson, Taxation No Tyranny: An Answer to the Resolutions and Address of the American Congress 9 (1775) (“A merchant’s desire is not of glory, but of gain; not of publick wealth, but of private emolument; he is, therefore, rarely to be consulted about war and peace, or any designs of wide extent and distant consequence.”). 29 John Mikhail, A Note on the Original Meaning of “Emolument,” Balkinization (Jan. 18, 2017), https://balkin.blogspot.com/2017/01/a-note-on-original-meaning-of-emolument.html (citing examples); see John Mikhail, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523–1806 (July 13, 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995693 (concluding that “‘emolument’ was not a term of art at the founding with a highly restricted meaning” but rather was used in a “broad variety of contexts, including private commercial transactions”).
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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 29 of 59
reflected this broad definition as well.30 24. Thus, it has long been understood by Congress and the executive branch that the
Foreign Emoluments Clause applies to the acceptance of any benefits or advantages from foreign states—including compensation for services rendered in a private capacity. Benefits and advantages that have been viewed as falling within the scope of the Clause include the following:
a. A NASA employee’s receipt of a $150 consulting fee for reviewing a Ph.D. thesis.31
b. Payments to a Nuclear Regulatory Commission employee by an American consulting firm for work regarding the construction of a Mexican government power plant.32
c. Payments to a part-time Nuclear Regulatory Commission staff consultant by an American corporation for work on a contract with the government of Taiwan.33
d. Payments to members of the Administrative Conference of the United States, by those members’ law firms, of “a share of partnership earnings, where some portion of that share is derived from the partnership’s representation of a
30 Randolph observed in his comments that “[a]ll men have a natural inherent right of receiving emoluments from any one, unless they be restrained by the regulations of the community.” 3 Convention Records 327.
31 Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Memorandum for H. Gerald Staub, Office of Chief Counsel, NASA, Re: Emoluments Clause Questions raised by NASA Scientist’s Proposed Consulting Arrangement with the University of New South Wales 2-3 (May 23, 1986).
32 Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 156 (1982).
33 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. at 96.
29

Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 30 of 59
foreign government.”34
e. A retired U.S. Air Force member’s employment “as a teacher in a local borough high school in the United Kingdom.”35
f. A courthouse employee’s “receipt of pension payments from the British Government.”36
g. A Post Office clerk’s acceptance of an honorary military insignia from the German government.37
h. A gift of photographs to U.S. military and civilian officers by a foreign prince as “a simple remembrance of courtesy.”38
i. A Navy surgeon’s receipt of a “token of thankfulness” from a foreign government for his services on behalf of one of its citizens.39
25. As these examples illustrate, the Clause has long been understood to apply to any
rewards or benefits given by foreign states—whether tangible or honorary, monetary or
nonmonetary, of great value or slight. This interpretation prevents officeholders from accepting
anything from a foreign state that might weaken their independence or cause them to act against
34 Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 120 (1993).
35 Comptroller General, Matter of: Major James D. Dunn & Senior Master Sergeant Marcus A. Jenkins, B-251084 (Oct. 12, 1993).
36 Comptroller General, Officers and Employees—Acceptance of Foreign Presents, Emoluments, Etc.—Court Employees, B-132808 (Aug. 26, 1957).
37 Delivery of an Insignia from the German Emperor to a Clerk in the Post-Office Dep’t, 27 Op. Att’y Gen. 219, 220 (1909).
38 Gifts from Foreign Prince—Officer—Constitutional Prohibition, 24 Op. Att’y Gen. 116, 118 (1902).
39 A Resolution allowing Doctor E.K. Kane, and the Officers associated with him in their late Expedition to the Arctic seas, in search of Sir John Franklin, to accept such Token of Acknowledgment from the Government of Great Britain as it may please to present, Aug. 30, 1856, 11 Stat. 152.
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the national interest—a danger the Founders perceived even in the “trifling presents”40 of ornament and jewelry that were customary of European diplomacy and that motivated the adoption of the Clause.41
26. By entrusting Congress with responsibility for deciding which specific benefits could be received from foreign states, the Founders ensured that federal officeholders would not decide for themselves whether particular emoluments were likely to compromise their own independence or lead them to put personal interest over national interest. An officeholder, in short, would not be the sole judge of his own integrity. The important separation-of-powers principle embodied in Congress’s gatekeeping role also ensured that any acceptance of foreign “Emolument[s]” would be transparent and subject to public examination, further minimizing the dangers of corruption and influence that such transfers of wealth or benefit might otherwise pose.
27. When Congress was first called upon to exercise this responsibility in 1798,42 lawmakers reaffirmed the views expressed a decade earlier during the Constitution’s ratification about the dangers of foreign manipulation and the importance of the Foreign Emoluments Clause in guarding against it. Representative William C.C. Claiborne described the Clause as “intended to lock up every door to foreign influence, to the influence of Courts and Monarchies, which could not but prove baneful to every free country.”43 Representative James Bayard noted that “[i]f presents were allowed to be received without number, and privately, they might produce an
40 5 Annals of Cong. 1587 (1798) (Bayard). 41 See supra, ¶¶ 19-20. 42 Former envoy Thomas Pinckney was offered “the customary presents” by the kings of England and Spain, but “declined receiving them, saying, that he would lay the matter before Congress.” 5 Annals of Cong. 1590 (1798) (Rutledge). The Senate authorized acceptance of the presents, but the House withheld its consent, see id. at 1570-93, subsequently passing a resolution to clarify that the Congressmen “were induced to such refusal solely by motives of general policy, and not by any view personal to the said Thomas Pinckney,” id. at 1775. 43 5 Annals of Cong. 1584 (1798) (Claiborne); see id. at 1587.
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improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors.”44 Representative Matthew Lyon expressed a refusal to consent to the acceptance of any foreign emoluments, as “he should not be willing to lay this country under an obligation to a foreign country by our Ministers accepting presents.”45
28. At the same time, lawmakers stressed that the dangers of foreign influence and divided loyalty were reduced when officeholders obeyed the Constitution’s mandate by seeking the consent of Congress before accepting any foreign benefit. As Representative Bayard explained, the Clause required officeholders “to make known to the world whatever presents they might receive from foreign Courts and to place themselves in such a situation as to make it impossible for them to be unduly influenced by any such presents.”46 Representative Harrison Gray Otis likewise noted: “When every present to be received must be laid before Congress, no fear need be apprehended from the effects of any such presents. For, it must be presumed, that the gentleman who makes the application has done his duty, as he, at the moment he makes the application, comes before his country to be judged.”47
29. In short, as Secretary of State Madison explained in 1803, “the Constitution of the United States has left with Congress the exclusive authority to permit the acceptance of presents from foreign governments by persons holding offices under the United States.”48 In order “to exclude corruption and foreign influence,”49 an officeholder must “make known to the world”50
44 Id. at 1583 (Bayard). 45 Id. at 1589 (Lyon). 46 Id. at 1583 (Bayard). 47 Id. at 1585 (Otis). 48 Letter from James Madison to David Humphreys (Jan. 5, 1803), in 4 Moore, supra note 15, at 579. 49 3 Convention Records 327 (Randolph).
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any benefit he wishes to accept from a foreign state and “come before his country to be judged”51 by seeking “the Consent of the Congress.”52
30. By extending the reach of these important rules to everyone who holds “any Office of Profit or Trust” under the United States, the Founders ensured that the Foreign Emoluments Clause would apply to all federal officeholders and thus guard against corruption in the highest reaches of the new nation’s government.53 Such officeholders naturally included the President of the United States. As Randolph explained at the Virginia Ratifying Convention, “[t]here is another provision against the danger . . . 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.”54 And as noted, the Founders were especially afraid that foreign nations would use favors to subvert the loyalty of the President.55
31. Historically, presidents have respected their obligations under the Foreign Emoluments Clause and have declined to accept presents or emoluments from foreign states without obtaining the consent of Congress:
a. President Andrew Jackson transmitted to Congress in 1830 a commemorative gold medal that Colombia’s president Simón Bolívar had presented to him.
50 5 Annals of Cong. 1583 (1798) (Bayard). 51 Id. at 1585 (Otis). 52 U.S. Const. art. I, § 9, cl. 8. 53 Emoluments Clause, The Heritage Guide to the Constitution, supra note 20 (“the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government”). 54 David Robertson, Debates and other Proceedings of the Convention of Virginia 345 (2d ed. 1805) (1788). 55 See supra, ¶ 18.
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Congress directed that the medal be “deposited in the Department of State.”56 b. President Martin Van Buren in 1840 was offered two horses, a case of rose
oil, five bottles of rose water, a package of cashmere shawls, a Persian rug, a box of pearls, and a sword by the Imam of Muscat.57 Writing to the Imam, Van Buren explained that “a fundamental law of the Republic which forbids its servants from accepting presents from foreign States or Princes, precludes me from receiving” the items.58 Van Buren then apprised Congress of the gifts: “I deem it my duty to lay the proposition before Congress, for such disposition as they may think fit to make of it.”59 Congress directed him to deposit the items with the State Department, selling any items that could not “conveniently be deposited or kept” there and placing the proceeds with the U.S. Treasury.60 c. President John Tyler in 1843 was offered two horses by the Imam of Muscat. He notified Congress, seeking direction regarding the disposition of the gifts.61 Congress directed Tyler to sell the horses at auction and place the
56 See Message from the President of the United States, at 3 (Jan. 22, 1834), in Message from the President of the United States to the Two Houses of Congress at the Commencement of the First Session of the Twenty-Third Congress, at 259 (1833).
57 14 Abridgment of the Debates of Congress from 1789 to 1856, at 140-41 (Thomas Hart Benton ed., 1860).
58 Id. at 141 (reprinting Letter from Martin Van Buren to Syed Bin Sutan, Imaum of Muscat (May 8, 1840)).
59 Id. at 140 (reprinting Letter from Martin Van Buren to the Senate (May 21, 1840)). 60 Joint Resolution No. 4, A Resolution to authorize the President to dispose of certain presents from the Imaum of Muscat and the Emperor of Morocco, July 20, 1840, 5 Stat. 409. 61 4 Moore, supra note 15, at 582.
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proceeds with the U.S. Treasury.62 d. President Abraham Lincoln wrote to the King of Siam in 1862 regarding gifts
that the King had sent to the President—two decorative elephant tusks, an ornate sword, and a photograph of the King. Lincoln wrote that “our laws forbid the President from receiving these rich presents as personal treasures. . . . Congress being now in session at this capital, I have had great pleasure in making known to them this manifestation of Your Majesty’s munificence and kind consideration.”63 Congress directed that the items be deposited with the Department of the Interior.64 e. President Benjamin Harrison had “certain medals presented to him by the Governments of Brazil and Spain during the term of his service as President of the United States.”65 In 1896, Congress authorized him to personally accept the medals.66 f. President John F. Kennedy was offered honorary Irish citizenship in 1963 by the government of Ireland. The White House sought the views of the Department of Justice’s Office of Legal Counsel, which advised that
62 An Act to authorize the sale of two Arabian horses, received as a present by the Consul of the United States at Zanzibar, from the Imaum of Muscat, Mar. 1, 1845, 5 Stat. 730.
63 Letter from Abraham Lincoln, President of the United States of America, to His Majesty Somdetch Phra Paramendr Maha Mongut, King of Siam (Feb. 3, 1862), available at http://quod.lib.umich.edu/l/lincoln/lincoln5/1:269.1?rgn=div2;view=fulltext.
64 Joint Resolution No. 20, A Resolution providing for the Custody of the Letter and Gifts from the King of Siam, Mar. 15, 1862, 12 Stat. 616.
65 Joint Resolution No. 39, Joint Resolution to authorize Benjamin Harrison to accept certain medals presented to him while President of the United States, Apr. 2, 1896, 29 Stat. 759.
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acceptance would implicate the Foreign Emoluments Clause.67 Kennedy declined to accept the honor.68 g. President Barack Obama was named the winner of the Nobel Peace Prize in 2009. The White House sought the views of the Office of Legal Counsel, which advised that acceptance of the prize would not fall within the Foreign Emoluments Clause because the Nobel Committee that awards the prize is not a foreign state or controlled by a foreign state.69 32. In sum, past presidents have recognized that they are bound by the Foreign Emoluments Clause and have responded accordingly—either seeking Congress’s consent to accept foreign emoluments or simply choosing not to receive them. 33. Although Defendant Donald J. Trump has accepted the privilege of occupying the highest office in the land, he is not obeying the same rules as the federal officers and employees described above or following the example of compliance set by former presidents. He has refused to divest from his businesses and instead continues to accept financial payments and other benefits from foreign states through his many business entities without first obtaining the consent of Congress.
67 Norbert A. Schlei, Office of Legal Counsel, Proposal That the President Accept Honorary Irish Citizenship: Memorandum Opinion for the Special Assistant to the President 278 (May 10, 1963).
68 See Clodagh Sheehy, JFK Had To Turn Down Citizenship Offer From Government, Irish Indep. (Dec. 29, 2006), http://www.independent.ie/irish-news/jfk-had-to-turn-downcitizenship-offer-from-government-26352995.html.
69 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, 1 (2009).
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IV. RELEVANT FACTS
A. Defendant’s Acceptance of Benefits from Foreign States
34. Defendant is the owner, in whole or in part, of hundreds of businesses, which are
“linked in a complex network of interconnected individual corporations, limited liability
companies and partnerships. The list includes more than 500 separate entities—hotels, golf
courses, media properties, books, management companies, residential and commercial buildings, . . . airplanes and a profusion of shell companies set up to capitalize on licensing deals.”70 These business interests are located in the United States and in at least twenty foreign countries.71
35. While it is well known that Defendant’s business empire is vast and global, the
exact nature of his holdings and the benefits he receives from them remain unclear. Defendant
has refused to release his tax returns, and the complicated interconnection between the hundreds
of discrete business entities and shell companies in which he owns an interest makes it
impossible to determine the full scope of the benefits he is currently accepting from foreign
states. Contributing to the lack of transparency, “[o]ver the last 12 months, about 70% of buyers
of Trump properties were limited liability companies—corporate entities that allow people to purchase property without revealing all of the owners’ names.”72
70 John W. Schoen, Inside Trump’s Holdings: A Web of Potential Conflicts, CNBC.com (Jan. 23, 2017), http://www.cnbc.com/2017/01/19/inside-trumps-holdings-a-web-of-potentialconflicts.html.
71 Marilyn Geewax, Trump’s Businesses and Potential Conflicts: Sorting It Out, NPR (Dec. 5, 2016), http://www.npr.org/2016/12/05/503611249/trumps-businesses-and-potentialconflicts-sorting-it-out; see Donald J. Trump, U.S. Office of Gov’t Ethics Form 278e (May 16, 2016), available at https://www.documentcloud.org/documents/2838696-Trump-2016-FinancialDisclosure.html.
72 Nick Penzenstadler et al., Most Trump Real Estate Now Sold to Secretive Buyers, USAToday (June 13, 2017), https://www.usatoday.com/story/news/2017/06/13/trump-propertybuyers-make-clear-shift-secretive-llcs/102399558/?siteID=je6NUbpObpQp94xNqqEtnpXcOmZy086bA.
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36. Defendant has not divested or otherwise given up his ownership interest in his
worldwide business holdings since he was elected President of the United States.
37. Defendant has acknowledged, through his personal attorney, that his businesses
receive funds and make a profit from payments by foreign governments, and that they will continue to do so while he is President.73 Further, public reporting has confirmed that Defendant and his businesses have accepted benefits from foreign states since he took office.74
38. These various benefits from foreign governments—payments, loans, permits, exemptions, policy changes, and intellectual property rights—constitute prohibited “Emolument[s]” and/or “present[s]” under the Foreign Emoluments Clause (hereinafter referred to collectively as “Emolument[s]” or “foreign emoluments”).75
39. Defendant has not sought “the Consent of the Congress” with respect to any of the
benefits that he has accepted, or will accept, from foreign states in conjunction with his business
holdings.
40. Because Defendant has failed to come to Congress and seek consent before
accepting foreign emoluments that have been confirmed through public reporting, it is
impossible to know whether Defendant is accepting other foreign emoluments that have not yet
73 See Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017) (statement of Sheri A. Dillon, Partner, Morgan, Lewis & Bockius LLP), https://www.nytimes.com/2017/01/11/us/politics/trump-press-conference-transcript.html.
74 See infra, ¶¶ 44-67. 75 Historically, certain awards and benefits from foreign states have been understood by Congress and the executive branch to be prohibited by the Clause without a determination of which specific term or terms they implicate. See, e.g., Schlei, supra note 67, at 280 (“medals and decorations have always been regarded as coming within the constitutional provision, although it has never been precisely articulated whether one of these constitutes a ‘present, Emolument, Office, or Title’”). Whether any of the benefits discussed below are better characterized as “present[s]” or “Emolument[s]” may depend on their terms and the circumstances under which they are conferred—information that Defendant has not fully disclosed.
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been made public. Indeed, through his personal attorney, Defendant has indicated that he does not believe the Constitution requires him to seek or obtain Congress’s consent before accepting benefits arising out of exchanges between foreign states and his businesses.76
41. Because Defendant has not sought congressional consent before accepting these foreign emoluments, nor provided information about them to Congress, Plaintiffs are unable to exercise their constitutional prerogative to authorize or reject the specific emoluments he is accepting. While some information about Defendant’s financial dealings with foreign states is publicly available in press reports and financial disclosures, that information is fragmentary. Even where reliable sources confirm specific transactions between foreign states and Defendant’s businesses, the complex structure of those transactions and Defendant’s financial holdings makes it impossible to determine precisely how a given arrangement benefits him or affects the foreign state in question.77 Without that information, Plaintiffs cannot judge whether they should consent to the acceptance of any particular payment or other benefit from a foreign state, as the Constitution requires.
42. In sum, Defendant’s refusal to disclose to Congress the foreign emoluments he wishes to accept makes it impossible for Plaintiffs to judge whether any specific foreign emoluments should be approved, and often to know of their existence. Defendant has therefore denied Plaintiffs the opportunity to decide, on a case-by-case basis, whether to authorize his acceptance of particular emoluments from foreign states. The Constitution expressly demands that Plaintiffs be given that opportunity.
76 See, e.g., Donald Trump’s News Conference: Full Transcript and Video, supra note 73 (statement of Sheri A. Dillon) (“The Constitution does not require [Defendant] to do anything here.”).
77 See Susanne Craig, Trump’s Empire: A Maze of Debts and Opaque Ties, N.Y. Times (Aug. 20, 2016), https://www.nytimes.com/2016/08/21/us/politics/donald-trump-debt.html?_r=0.
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43. By accepting benefits from foreign states without first obtaining “the Consent of the Congress,” Defendant is therefore committing numerous violations of the Foreign Emoluments Clause. Some of these violations have been partially described in media reports and other publicly available sources, as detailed below. But because Defendant refuses to come to Congress and seek consent, thereby preventing the transparency that “the Consent of the Congress” was designed to provide, other violations, upon information and belief, remain completely hidden.
Acceptance of Intellectual Property Rights 44. On February 14, 2017, the Chinese government registered a trademark to Defendant for branded construction services, “the result of a 10-year legal battle that turned in [Defendant]’s favor after he declared his candidacy.”78 45. On February 27 and March 6, 2017, the Chinese government granted preliminary approval of 38 new trademarks to Defendant and one of his companies, covering “branded spa and massage services, golf clubs, hotels, insurance, finance and real estate companies, restaurants, bars, and a trademark class that covers bodyguards, social escorts, and concierge services.”79 46. In May 2017, the Chinese government granted Defendant preliminary approval of two more trademarks, one for catering services and one that “can be used in clothing like trousers, underwear and suits.”80
78 Erika Kinetz, China Grants Preliminary Approval to 38 New Trump Trademarks, AP (Mar. 9, 2017), https://apnews.com/8f54b14808a2459f9efcb0089f41f056/China-grantspreliminary-approval-to-38-new-Trump-trademarks.
79 Id. Trademarks that receive preliminary approval are automatically registered after ninety days if there are no objections. Id.
80 Sui-Lee Wee, Trump Adds Another Chinese Trademark to His Portfolio, N.Y. Times (May 23, 2017), https://www.nytimes.com/2017/05/23/business/trump-china-
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47. On June 6 and June 13, 2017, the Chinese government granted Defendant
preliminary approval of eight additional trademarks, covering services that include “construction,
advertising, weather forecasting and dietary consulting.”81
48. Circumstances suggest that at least some of these trademarks were approved or
expedited as a result of Defendant’s status as President of the United States. After the
preliminary approval of trademarks in February and March, the director of a Hong Kong
intellectual property consultancy “said he had never seen so many applications approved so
expeditiously,”82 and those approvals closely followed Defendant’s abrupt decision as President
to honor the one-China policy, in contrast to his earlier statements.83 Moreover, many of the
preliminary approvals granted since Defendant became President were for trademarks that the
Chinese government had previously rejected.84 Regarding these reversals, another intellectual
property attorney stated: “The speed with which these appeals were decided is mind-blowing. . . .
trademarks.html?_r=1; Paul Mozur, Trump Awarded a New Chinese Trademark, This Time for Catering, N.Y. Times (June 1, 2017), https://www.nytimes.com/2017/06/01/business/trumpchina-trademark.html.
81 Jill Disis & Serenitie Wang, Trump’s Newest Chinese Trademarks: Religious Clothing, Advertising, CNN Money (June 14, 2017), http://money.cnn.com/2017/06/14/news/trumpchinese-trademarks-religious-clothing/index.html; Sui-Lee Wee, Trump Adds More Trademarks in China, N.Y. Times (June 13, 2017), https://mobile.nytimes.com/2017/06/13/business/trumpchina-trademarks.html?emc=edit_th_20170614&nl=todaysheadlines&nlid=51243100&_r=0& referer=.
82 Id. 83 Simon Denyer & Philip Rucker, Backing Away From a Fight, Trump To Honor OneChina Policy, Wash. Post (Feb. 10, 2017), https://www.washingtonpost.com/world/asia_pacific/trump-agrees-to-honor-one-china-policy-incall-to-xi-jinping/2017/02/10/ea6e7ece-ef4a-11e6-9973c5efb7ccfb0d_story.html?utm_term=.655101b0f540. 84 See Erika Kinetz, China Approves 9 of Trump’s Trademarks that They Had Previously Rejected, AP (June 14, 2017), http://www.businessinsider.com/ap-china-overturns-rejections-of9-trump-trademarks-2017-6.
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I have never seen any decisions made that quickly. That suggests special treatment.”85 49. Possession of these various trademarks “offers a potential business foothold for
[Defendant]’s family company and protects his name in a country notorious for counterfeiters,”86 benefits that are of particular value to Defendant as his company prepares to build twenty to thirty hotels in major Chinese cities.87 Foreign trademarks “can be enormously valuable— whether they are intended as groundwork for future business activity or defensive measures against squatting to protect the value of the brand,”88 and a Trump Organization spokesman has stated that the company has pursued Chinese trademarks “to protect its brand and overall intellectual property rights from third-party infringers.”89
50. By accepting the registration of these trademarks, Defendant has violated the Foreign Emoluments Clause because he did not first seek and obtain “the Consent of the Congress” before accepting these benefits from a foreign state.
51. As of April 2017, according to one investigation, Defendant’s companies had 157 trademark applications pending in 36 foreign nations.90 Accepting the registration of these trademarks would violate the Foreign Emoluments Clause unless Defendant first sought and obtained “the Consent of the Congress,” which he has not done.
85 Id. 86 Kinetz, China Grants Preliminary Approval, supra note 78. 87 Rob Schmitz, Trump’s Hotels in China Could Be a Conflict for the President-Elect, NPR (Nov. 24, 2016), http://www.npr.org/2016/11/24/503236237/trumps-hotels-in-china-couldbe-a-conflict-for-the-president-elect. 88 Kinetz, China Approves 9 of Trump’s Trademarks, supra note 84. 89 Wee, Trump Adds More Trademarks, supra note 81 (statement of Alan Garten, executive vice president and chief legal officer). 90 Sharon LaFraniere & Danny Hakim, Trump’s Trademark Continues Its March Across the Globe, Raising Eyebrows, N.Y. Times (Apr. 11, 2017), https://www.nytimes.com/2017/04/11/us/politics/trump-trademark-ethics.html.
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Acceptance of Payments for Hotel Rooms and Events 52. In 2013, Trump Old Post Office LLC signed a lease with the General Services Administration, so it could house Trump International Hotel Washington, D.C. in the Old Post Office building located at 1100 Pennsylvania Avenue, N.W., Washington, D.C. 20004. Defendant owns approximately 77 percent of Trump Old Post Office LLC.91 53. “For Washington hotels . . . diplomats’ visits are big business,” and Defendant’s hotel has been “actively courting” foreign diplomats,92 including hiring a “director of diplomatic sales” and hosting an event soon after the November 2016 election in which “[a]bout 100 foreign diplomats, from Brazil to Turkey” were given “a sales pitch about [Defendant]’s newest hotel.”93 An attendee who works with foreign officials noted that “‘[t]he place was packed’” and that “much of the discussion among Washington-based diplomats [was] over ‘how are we going to build ties with the new administration.’”94 54. According to public reports, diplomats plan to stay at the hotel to curry favor with Defendant because of his position as President of the United States. “In interviews with a dozen diplomats . . . some said spending money at Trump’s hotel is an easy, friendly gesture to the new president.”95 According to an Asian diplomat, “Why wouldn’t I stay at [Defendant’s] hotel blocks from the White House, so I can tell the new president, ‘I love your new hotel!’ Isn’t it
91 See U.S. Office of Gov’t Ethics Form 278e, supra note 71. 92 Eric Lipton & Susanne Craig, At Trump Hotel in Washington, Champagne Toasts in an Ethical ‘Minefield,’ N.Y. Times (Jan. 19, 2017), https://www.nytimes.com/2017/01/19/us/politics/trump-international-hotel-ethics.html. 93 Jonathan O’Connell & Mary Jordan, For Foreign Diplomats, Trump Hotel Is Place To Be, Wash. Post (Nov. 18, 2016), https://www.washingtonpost.com/business/capitalbusiness/2016/11/18/9da9c572-ad18-11e6977a-1030f822fc35_story.html?utm_term=.1a4c839c9c6a. 94 Id. 95 Id.
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rude to come to his city and say ‘I am staying at your competitor?’”96 One Middle Eastern diplomat put it even more simply: “Believe me, all the delegations will go there.”97
55. Indeed, during the first four months of 2017, Defendant’s company made nearly $2 million in profit from the hotel, although the company had earlier projected that it would lose over $2 million during that period.98 These profits accumulated despite an occupancy rate well below standard for the industry,99 and despite the hotel’s ranking by a “travel group that specializes in high-end accommodations” as “the world’s third-lousiest new hotel.”100 “Driving the profits are the extraordinary prices guests have been willing to pay for rooms,” as the hotel charges “three times the average rate,” making it probably “the most expensive hotel in the city.”101
56. By virtue of his ownership of the Trump International Hotel Washington, D.C., Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality every time foreign diplomats stay at the hotel, foreign embassies hold events there, or foreign governments otherwise pay for rooms there. On information and belief, there have been at least three such incidents since Defendant’s inauguration:
96 Id. 97 Id. 98 Jonathan O’Connell, Trump D.C. Hotel Turns $2 Million Profit in Four Months, Wash. Post (Aug. 10, 2017), https://www.washingtonpost.com/politics/trump-dc-hotel-turns-2-millionprofit-in-four-months/2017/08/10/23bd97f0-7e02-11e7-9d08b79f191668ed_story.html?utm_term=.24484d88a37e. 99 Id. 100 Benjamin Freed, Luxury Travel Group Gives Trump’s DC Hotel a Brutal Review, Washingtonian (Dec. 20, 2016), https://www.washingtonian.com/2016/12/20/travel-group-dctrump-hotel-one-worlds-worst-new-luxury-hotels/. 101 O’Connell, supra note 98.
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a. In late January 2017, “[a] lobbying firm working for Saudi Arabia paid for a room at [Defendant]’s Washington hotel after Inauguration Day,” as part of its effort to bring activists to Washington “to urge Congress to repeal the law letting 9/11 victims’ families sue the kingdom.”102 This transaction marked “the first publicly known payment on behalf of a foreign government to a Trump property since [Defendant] became president.”103 The lobbying firm made additional payments to the hotel in early February 2017, and all payments were reimbursed by the Saudi government.104 Between November 2016 and February 2017, the firm paid Defendant’s hotel approximately $270,000 for lodging, catering, and parking—all reimbursed by the Saudi government.105
b. On February 22, 2017, the Embassy of Kuwait held its National Day Celebration at Trump International Hotel Washington, D.C. According to cost estimates from the hotel, the price of the celebration was between $40,000 and $60,000.106
102 Isaac Arnsdorf, Saudis Foot Tab at Trump Hotel, Politico (Feb. 9, 2017), http://www.politico.com/story/2017/02/trump-hotel-saudi-arabia-234878?cmpid+sf.
103 Id. 104 Byron Tau & Rebecca Ballhaus, Trump Hotel Received $270,000 From Lobbying Campaign Tied to Saudis, Wall St. J. (June 5, 2017), https://www.wsj.com/articles/trump-hotelreceived-270-000-from-lobbying-campaign-tied-to-saudis-1496700739. 105 Id. Public reports do not indicate what portion of these payments were made after Defendant became President, though an executive from the lobbying firm has claimed that the majority of the payments occurred before he became President. Id. 106 Julia Harte, Kuwait Could Pay Up To $60,000 for Party at Trump Hotel in Washington, Reuters (Feb. 27, 2017), http://www.reuters.com/article/us-usa-trump-hotelidUSKBN1640LE.
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c. On or about April 6, 2017, the Ambassador & Permanent Representative
of Georgia to the United Nations stayed at Trump International Hotel Washington, D.C.107 57. Defendant has not sought or received “the Consent of the Congress” to accept these “Emolument[s]” and is therefore violating the Foreign Emoluments Clause when he accepts such “Emolument[s].” Acceptance of Payments Derived from Real Estate Holdings
58. Defendant owns Trump Tower, a mixed-use skyscraper located at 725 Fifth Avenue, New York, N.Y. 10022. Since Defendant became President, at least two entities owned by foreign states have been tenants of Trump Tower: (1) the Industrial and Commercial Bank of China, which is owned by China,108 and (2) the Abu Dhabi Tourism & Culture Authority, which is owned by the United Arab Emirates.109
59. By virtue of his ownership of Trump Tower and the leases of these entities, Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality. Defendant has not sought or received “the Consent of the Congress” to accept these “Emolument[s]” and is therefore violating the Foreign Emoluments Clause.
107 Kaha Imnadze (@kahaimnadze), Twitter (Apr. 6, 2017, 8:49 AM), https://twitter.com/kahaimnadze/status/850012655347789824.
108 Caleb Melby, Stephanie Baker, & Ben Brody, When Chinese Bank’s Trump Lease Ends, Potential Conflict Begins, Bloomberg Pol. (Nov. 28, 2016), https://www.bloomberg.com/politics/articles/2016-11-28/trump-s-chinese-bank-tenant-maynegotiate-lease-during-his-term.
109 Adam Schreck, In a First, Emirati Foreign Minister Defends Trump Visa Ban, AP (Feb. 1, 2017), http://bigstory.ap.org/article/4ecfcc9c03bb412fae7233be0f53f2b6/first-emiratiforeign-minister-defends-trump-visa-ban. According to a subsequent report, the Abu Dhabi tourism authority ended its lease effective January 31, 2017. Lorraine Woellert, Abu Dhabi Tourism Office Quits Trump Tower, Politico (June 6, 2017), http://www.politico.com/story/2017/06/06/abu-dhabi-trump-tower-tourism-office-239188.
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60. Defendant also owns Trump World Tower, which is located at 845 United Nations Plaza, New York, N.Y. 10017.
61. In 2001, the Kingdom of Saudi Arabia purchased a floor of Trump World Tower, and the floor currently belongs to the Saudi Mission to the United Nations.110 At the time of the sale, the floor had “yearly common charges of $85,585 for building amenities.”111
62. If Saudi Arabia continues to pay common charges to Defendant’s company, Defendant has accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or instrumentality, and he will have done so without first seeking and receiving “the Consent of the Congress,” in violation of the Foreign Emoluments Clause.
Acceptance of Licensing Fees for “The Apprentice” 63. While serving as President, Defendant remains an executive producer of the MGM-produced television show “The Apprentice.” In that role, he is contractually entitled to a percentage of the profits derived from licensing the show and its related spin-offs to television networks, including in foreign countries. “The show has current iterations in the U.K., Brazil, Bulgaria, Indonesia and Vietnam; each of these must pay MGM a licensing fee for the show’s name and set-up, a portion of which goes to Trump.”112 64. In the United Kingdom, the television network that pays these licensing fees is owned and operated by the government. Specifically, the state-owned network BBC One
110 Stephen Rex Brown, Exclusive: Donald Trump Made Millions from Saudi Government, but Trashes Hillary Clinton for Saudi Donations to Clinton Foundations, N.Y. Daily News (Sept. 4, 2016), http://www.nydailynews.com/news/politics/exclusive-donald-trumpmade-millions-saudi-government-article-1.2777211.
111 Id. 112 Madeline Berg, Here’s How Much Donald Trump Will Earn From Producing ‘Celebrity Apprentice,’ Forbes (Dec. 13, 2016), https://www.forbes.com/sites/maddieberg/2016/12/13/heres-how-much-trump-will-earn-fromproducing-celebrity-apprentice/#505f22311d0c.
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broadcasts a version of “The Apprentice,”113 for which the network pays a licensing fee, a
portion of which goes to Defendant.
65. By taking a portion of licensing fees paid by foreign governments, Defendant has
accepted, or necessarily will accept, “Emolument[s]” from a “foreign State” or its agent or
instrumentality, and he will have done so without first seeking and receiving “the Consent of the
Congress,” in violation of the Foreign Emoluments Clause.
Acceptance of Regulatory Benefits
66. Defendant is at least part owner of numerous business ventures around the world,
including in Argentina,114 China,115 India,116 Indonesia,117 Scotland,118 Turkey,119 United Arab
Emirates,120 and the Philippines.121 Many of these ventures are in the planning stages, and as
113 See The Apprentice, BBC One, http://www.bbc.co.uk/programmes/b0071b63 (last visited June 12, 2017).
114 Josh Marshall & Catherine Thompson, Cashing in BIGLY in Argentina!, Talking Points Memo (Nov. 21, 2016), http://talkingpointsmemo.com/edblog/cashing-in-bigly-inargentina.
115 Schmitz, supra note 87. 116 Richard C. Paddock et al., Potential Conflicts Around the Globe for Trump, the Businessman President, N.Y. Times (Nov. 26, 2016), https://www.nytimes.com/2016/11/26/us/politics/donald-trump-international-business.html. 117 Richard C. Paddock & Eric Lipton, Trump’s Indonesia Projects, Still Moving Ahead, Create Potential Conflicts, N.Y. Times (Dec. 31, 2016), https://www.nytimes.com/2016/12/31/world/asia/indonesia-donald-trump-resort.html. 118 Severin Carrell, Trump’s Scotland Golf Resort Proceeds with Expansion Despite Business Pledge, The Guardian (Jan. 14, 2017), https://www.theguardian.com/usnews/2017/jan/14/trump-scotland-golf-resort-conflicts-of-interest. 119 Pema Levy, Trump Admitted to a Conflict of Interest in Turkey, Mother Jones (Nov. 15, 2016), http://www.motherjones.com/politics/2016/11/donald-trump-i-have-little-conflictinterest-turkey. 120 Jon Gambrell, AP Exclusive: Golf Club Shows Pitfalls of Trump Presidency, AP (Jan. 3, 2017), http://bigstory.ap.org/article/f105158bacc94890bc952a26f8a5c819. 121 Jackie Northam, Trump Business Deals in Southeast Asia Raise Conflict of Interest Concerns, NPR (Jan. 6, 2017),
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public reports note, “foreign developers could stand to benefit if their governments were to
grease the skids for Trump-branded projects as a way to curry favor with the new American president.”122 Indeed, since the election, there have been reports of Defendant asking for, and
receiving, such help from foreign governments:
a. In November 2016, when Argentine President Mauricio Macri called
Defendant to congratulate him on his victory, Defendant reportedly asked him
“to deal with the permitting issues that are currently holding up” a project that
Defendant and Argentine partners have been working on for a number of years, namely, the development of a major office building in Buenos Aires.123
“[T]hree days after Trump spoke with Argentina’s president, . . . the long delayed project was moving ahead.”124
b. In a meeting “held shortly after the presidential election,” Defendant
reportedly “encouraged [British politician Nigel Farage] . . . to oppose the
kind of offshore wind farms that [Defendant] believes will mar the pristine view from one of his two Scottish golf courses.”125
http://www.npr.org/sections/parallels/2017/01/06/508411598/trump-business-deals-in-southeastasia-raise-conflict-of-interest-concerns.
122 Rosalind S. Helderman & Tom Hamburger, Trump’s Presidency, Overseas Business Deals and Relations with Foreign Governments Could All Become Intertwined, Wash. Post (Nov. 25, 2016), https://www.washingtonpost.com/politics/trumps-presidency-overseasbusiness-deals-and-relations-with-foreign-governments-could-all-becomeintertwined/2016/11/25/d2bc83f8-b0e2-11e6-861652b15787add0_story.html?utm_term=.9f2b946fffd5.
123 Marshall & Thompson, supra note 114. 124 Helderman & Hamburger, supra note 122. 125 Danny Hakim & Eric Lipton, With a Meeting, Trump Renewed a British Wind Farm Fight, N.Y. Times (Nov. 21, 2016), https://www.nytimes.com/2016/11/21/business/with-ameeting-trump-renewed-a-british-wind-farm-fight.html.
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c. Further, “[d]ays after [Defendant]’s election victory, a news agency in the former Soviet republic of Georgia reported that a long-stalled plan for a Trump-branded tower in a seaside Georgian resort town was now back on track.”126
67. Defendant’s acceptance of any benefits from foreign governments related to his business ventures abroad—including payments, loans, permits, exemptions, tax incentives, and favorable policy changes—would violate the Foreign Emoluments Clause unless Defendant first sought and obtained “the Consent of the Congress,” which he has not done.
Consequences of Defendant’s Failure To Comply with the Constitution 68. Defendant’s refusal to seek and obtain “the Consent of the Congress” before accepting the payments and benefits discussed above suggests that Defendant may have accepted other payments and benefits from foreign states that have not yet been made public. Neither the Plaintiffs nor the public, therefore, can know the full range of Defendant’s unconstitutional acceptance of foreign emoluments. 69. By accepting such benefits without first obtaining congressional consent, Defendant is causing the harms that the Founders sought to prevent when they adopted the Foreign Emoluments Clause. The Clause was meant to ensure “the undivided loyalty of individuals occupying positions of trust under our government,”127 because, as the Founders recognized, “[t]hose who hold offices under the United States must give the government their unclouded judgment and their uncompromised loyalty.”128 Defendant’s conduct deprives the
126 Helderman & Hamburger, supra note 122. 127 Application of Emoluments Clause to Part-Time Consultant for the Nuclear Regulatory Commission, 10 Op. O.L.C. at 100. 128 Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. at 18.
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American people of assurance that their highest elected official is pursuing their best interests
with undivided loyalty.
70. For instance, as Defendant addresses critical trade issues with China, which could
dramatically affect the American economy and American jobs, he may be influenced by the fact
that New York’s Trump Tower will soon be renegotiating its lease with the state-owned
Industrial and Commercial Bank of China,129 or the fact that the Chinese government recently
granted him numerous trademarks enabling his companies to pursue lucrative business
opportunities in that country.130
71. As Defendant brokers arms deals with Saudi Arabia,131 as he navigates conflicts
between Saudi Arabia and Qatar,132 and as he decides whether to commit U.S. resources to
support Saudi military actions in Yemen, which potentially could escalate and put American
servicemembers in harm’s way, he may be influenced by his desire to pursue hotel deals in Saudi
Arabia requiring government approvals.133 Indeed, Defendant said during the presidential
129 Melby, Baker, & Brody, supra note 108. 130 Kinetz, China Grants Preliminary Approval, supra note 78. 131 Michael J. de la Merced, Saudi Arabia To Invest $20 Billion in Infrastructure, Mostly in U.S., N.Y. Times (May 20, 2017), https://www.nytimes.com/2017/05/20/business/dealbook/saudi-arabia-to-invest-20-billion-ininfrastructure-mostly-in-us.html; Mark Landler et al., $110 Billion Weapons Sale to Saudis Has Jared Kushner’s Personal Touch, N.Y. Times (May 18, 2017), https://www.nytimes.com/2017/05/18/world/middleeast/jared-kushner-saudi-arabia-arms-deallockheed.html. 132 David D. Kirkpatrick, Trump’s Business Ties in the Gulf Raise Questions About His Allegiances, N.Y. Times (June 17, 2017), https://www.nytimes.com/2017/06/17/world/middleeast/trumps-business-ties-in-persian-gulfraise-questions-about-his-allegiances.html?cn=bWVudGlvbg%3D%3D&_r=0 (noting that Defendant’s position on this dispute differed from the position of his Secretary of State). 133 Drew Harwell & Anu Narayanswamy, A Scramble To Assess the Dangers of President-Elect Donald Trump’s Global Business Empire, Wash. Post (Nov. 20, 2016), https://www.washingtonpost.com/business/economy/a-scramble-to-assess-the-dangers-of-
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campaign that he “would want to protect Saudi Arabia” from Iranian aggression and also stated:
“Saudi Arabia, I get along with all of them. They buy apartments from me. They spend $40
million, $50 million. Am I supposed to dislike them?”134
72. As Defendant decides how to shape U.S. policy toward Russia, he may be
influenced by his long-standing, though yet unrealized, desire to build housing and hotels in
Russia,135 which could also require government approvals or licenses. Indeed, Donald Trump
Jr., Defendant’s son and an executive in the Trump Organization, has in the past acknowledged
the business ties between Defendant and Russia, noting in 2008 that “Russians make up a pretty
disproportionate cross-section of a lot of our assets” and that “we see a lot of money pouring in
from Russia.”136
73. Finally, as Defendant weighs the United States’ response to allegations that
Philippine president Rodrigo Duterte has endorsed extrajudicial killings and other human rights
abuses, he may be influenced by the millions of dollars he is set to receive in licensing revenue
from the new Trump Tower in Manila, particularly because his business partner in that venture
president-elects-global-business-empire/2016/11/20/1bbdc2a2-ad18-11e6-a31b4b6397e625d0_story.html?utm_term=.0926499e36bb.
134 Id. 135 Oren Dorell, Donald Trump’s Ties to Russia Go Back 30 Years, USA Today (Feb. 15, 2017), https://www.usatoday.com/story/news/world/2017/02/15/donald-trumps-ties-russia-goback-30-years/97949746/; see Mike McIntire, Russia Renewed Unused Trump Trademarks in 2016, N.Y. Times (June 18, 2017), https://www.nytimes.com/2017/06/18/us/politics/russiatrump-trademarks.html (“The extension of trademarks such as ‘Trump International Hotel and Tower’ protects his brand in that country and preserves conditions for potential business deals.”); see also Kevin G. Hall & Ben Wieder, Trump Dreamed of His Name on Towers Across Former Soviet Union, McClatchy (June 28, 2017), http://www.mcclatchydc.com/news/nationworld/national/article158518589.html. 136 Rosalind S. Helderman, Here’s What We Know About Donald Trump and His Ties to Russia, Wash. Post (July 29, 2016), https://www.washingtonpost.com/politics/heres-what-weknow-about-donald-trump-and-his-ties-to-russia/2016/07/29/1268b5ec-54e7-11e6-88eb7dda4e2f2aec_story.html?utm_term=.d25e09c907e7.
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was appointed by President Duterte to serve as a top trade envoy to the United States.137 74. As Defendant makes countless other foreign policy decisions, he may similarly be
influenced by how those decisions will affect his business pursuits. And because Defendant is not coming to Congress and identifying the emoluments he wishes to accept, the American people will have no way of knowing whether his actions as President reflect only his beliefs about what is best for the country, or whether they are partly motivated by personal financial considerations. For instance, when Defendant publicly advocated during the presidential campaign for a ban on Muslims entering the United States, Turkish President Recep Tayyip Erdogan called for Defendant’s name to be removed from the Trump Towers Istanbul, two highrises containing offices and luxury apartments, connected by a shopping mall. But after Defendant subsequently defended Erdogan’s suppression of political dissidents, “the calls for the renaming of the Trump Towers Mall ended.”138 Defendant himself has acknowledged that he has “a little conflict of interest” regarding Turkey because “I have a major, major building in Istanbul.”139
75. To avoid even the possibility that conflicts of interest like these would harm the American people by compromising the judgment of their leaders, the Founders laid down the strict prohibitions of the Foreign Emoluments Clause.
B. Plaintiffs’ Injuries 76. The text of the Foreign Emoluments Clause expressly assigns members of
137 Drew Harwell & Matea Gold, While in White House, Trumps Remained Selling Points for ‘Very Special’ Philippines Project, Wash. Post (May 2, 2017), https://www.washingtonpost.com/politics/while-in-white-house-trumps-remained-selling-pointsfor-very-special-philippines-project/2017/05/02/09ee6164-2e99-11e7-9dec764dc781686f_story.html?utm_term=.b60fdfde5a42.
138 Paddock et al., supra note 116. 139 Harwell & Narayanswamy, supra note 133.
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Congress a role in regulating federal officeholders’ acceptance of emoluments from foreign states. By providing that persons holding an “Office of Profit or Trust” under the United States may accept such “Emolument[s]” with, and only with, “the Consent of the Congress,” the Constitution makes clear that members of Congress must have the opportunity to cast a binding vote that gives or withholds their “Consent” before the President or any other federal officeholder accepts a foreign “Emolument.”
77. Since taking office, Defendant has accepted, or necessarily will accept, numerous emoluments from foreign states.
78. Congress has not consented to Defendant’s acceptance of any of the emoluments that he has received or will be receiving in the future.
79. Although the Foreign Emoluments Clause places on federal officeholders who wish to accept “Emolument[s]” the burden of seeking “the Consent of the Congress,” Defendant has never sought Congress’s consent for his acceptance of these foreign emoluments.
80. Similarly, Defendant has not provided Congress with any information about the foreign emoluments he has accepted or the transactions that produced them.
81. Defendant’s refusal to seek Congress’s consent and provide information about the foreign emoluments he is accepting makes it impossible for Plaintiffs to evaluate the unique circumstances of each emolument and decide, on a case-by-case basis, whether any of those specific emoluments should be approved.
82. By accepting emoluments without “the Consent of the Congress,” Defendant has violated the Foreign Emoluments Clause. In the process, Defendant has deprived Plaintiffs of their ability to vote on which emoluments he, as a federal officeholder, may accept. When
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legislators’ votes are “completely nullified” or “deprived of all validity,”140 they may seek
judicial redress to “have their votes given effect.”141 Such nullification occurs both where a
previously cast vote has been unlawfully disregarded and where, as here, legislators are
unlawfully denied an “opportunity to cast a binding vote” in the first place.142 By refusing to
seek Plaintiffs’ consent as constitutionally required, “[t]he President’s action has deprived them
of this opportunity completely, in the sense that they have no legislative power to exercise an
equivalent voting opportunity.”143 Plaintiffs thus have “a plain, direct and adequate interest in
maintaining the effectiveness of their votes” on whether consent should be given to Defendant’s
acceptance of foreign emoluments.144
83. Without a judicial order, Plaintiffs cannot force Defendant to obey the
Constitution’s text by seeking their consent before accepting such foreign emoluments. The
declaratory and injunctive relief that Plaintiffs are seeking would redress this injury by ensuring
140 Raines v. Byrd, 521 U.S. 811, 822-23 (1997). 141 Coleman v. Miller, 307 U.S. 433, 438 (1939); see Kennedy v. Sampson, 511 F.2d 430, 436 (D.C. Cir. 1974) (recognizing legislator’s standing “to vindicate the effectiveness of his vote” after “an illegal nullification” by the executive branch). 142 Goldwater v. Carter, 617 F.2d 697, 702-03 (D.C. Cir. 1979) (en banc) (recognizing standing where President’s action “deprived each individual Senator of his alleged right to cast a vote” on whether to terminate a treaty), vacated on other grounds, 444 U.S. 996 (1979); see Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663, 2665 (2015) (recognizing standing where action that “strips the Legislature of its alleged prerogative to initiate redistricting” would “completely nullify any vote by the Legislature, now or in the future,” on that topic (brackets and quotation marks omitted)); Moore v. U.S. House of Representatives, 733 F.2d 946, 949 (D.C. Cir. 1984) (recognizing standing where members of the House of Representatives were allegedly denied their constitutional prerogative “to originate bills for raising revenues”); Am. Fed’n of Gov’t Emps., AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982) (recognizing standing where legislator was allegedly deprived by the executive branch of his “statutory right to participate in the legislative process”); cf. Raines, 521 U.S. at 824 (denying standing because legislators could not claim that the statute they were challenging “will nullify their votes in the future”). 143 Goldwater, 617 F.2d at 703. 144 Coleman, 307 U.S. at 438.
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that Defendant accepts no “present, Emolument, Office, or Title” from any “foreign State” without first giving them an opportunity to vote on whether to provide their consent.
V. CLAIMS COUNT I Violations of the Foreign Emoluments Clause (Declaratory Relief) 84. Plaintiffs re-allege and incorporate by reference each and every foregoing paragraph of this Complaint as if set forth here in full. 85. 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. Specifically, Plaintiffs allege that Defendant, by virtue of his continuing ownership of vast business interests around the world, has been, or necessarily soon will be, accepting emoluments from foreign states. Because Defendant has not sought and received the consent of Congress, he is in violation of the Foreign Emoluments Clause. Defendant, through his personal attorney, has indicated that he disagrees with these allegations, believing instead that “[t]he Constitution does not require [Defendant] to do anything here.”145 86. Plaintiffs are entitled to declaratory relief under 28 U.S.C. § 2201. A declaration resolving the actual controversy between Plaintiffs and Defendant will aid in the resolution of legal issues in this action. Without this relief, Plaintiffs will continue to suffer injury. COUNT II Violations of the Foreign Emoluments Clause (Injunctive Relief) 87. Plaintiffs re-allege and incorporate by reference each and every foregoing paragraph of this Complaint as if set forth here in full.
145 Donald Trump’s News Conference: Full Transcript and Video, supra note 73. 56

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88. Defendant is a “Person holding any Office of Profit or Trust” under the Foreign Emoluments Clause.
89. The Foreign Emoluments Clause prohibits “Person[s] holding any Office of Profit or Trust” under the United States from accepting “present[s]” or “Emolument[s] . . . of any kind whatever”—that is, anything of value and any benefits, monetary or nonmonetary—from “any King, Prince, or foreign State,” without “the Consent of the Congress.”
90. As described more fully in paragraphs 34-62 herein, Defendant has committed and, absent this Court’s intervention, will continue to commit violations of the Foreign Emoluments Clause because he has accepted, or necessarily will accept, “Emolument[s]” from foreign states without obtaining the consent of Congress.
91. By accepting “Emolument[s]” from foreign states without obtaining the consent of Congress, Defendant has denied each Plaintiff the opportunity to cast binding votes on whether to provide his or her consent to Defendant’s acceptance of these individual “Emolument[s].”
92. Plaintiffs are entitled to injunctive relief to stop the above-mentioned injury, and this Court has the power to grant such relief pursuant to its inherent ability to grant equitable relief and pursuant to 28 U.S.C. § 1331. Such relief would order Defendant not to accept “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state without obtaining “the Consent of the Congress,” thus ensuring that individual members of Congress have the opportunity to vote on a case-by-case basis whether to give their consent, as the Constitution requires.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment in
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Plaintiffs’ favor and against Defendant, consisting of: (a) A declaratory judgment stating that: (1) Defendant is a “Person holding any Office of Profit or Trust” within the meaning of the Foreign Emoluments Clause; (2) the Foreign Emoluments Clause prohibits any “Person holding any Office of Profit or Trust” from accepting any benefits of value, monetary or nonmonetary, from “any King, Prince, or foreign State”; (3) the phrase “any King, Prince, or foreign State” under the Foreign Emoluments Clause includes any foreign government and any agent or instrumentality thereof; and (4) by accepting “Emolument[s]” from foreign states without first seeking and obtaining “the Consent of the Congress,” Defendant is violating the Foreign Emoluments Clause; (b) Injunctive relief, enjoining Defendant from accepting “Emolument[s]” from foreign states without first obtaining the consent of Congress; and (c) Such other and further relief as this Court may deem just and proper. Dated: June 20, 2019 CONSTITUTIONAL ACCOUNTABILITY CENTER By: /s/ Brianne J. Gorod Brianne J. Gorod Elizabeth B. Wydra (DC Bar No. 483298) Brianne J. Gorod (DC Bar No. 982075) Brian R. Frazelle (DC Bar No. 1014116) CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street, N.W. Suite 501 Washington, D.C. 20036
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Case 1:17-cv-01154-EGS Document 87 Filed 06/25/19 Page 59 of 59 (202) 296-6889 elizabeth@theusconstitution.org brianne@theusconstitution.org
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 Case 1:17-cv-01154-EGS Document 96 Filed 08/21/19 Page 1 of 8

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_________________________________

)

Senator RICHARD BLUMENTHAL,

)

et al.,

)

)

Plaintiffs,

)

)

v.

)Civil Action No. 17-1154 (EGS)

)

DONALD J. TRUMP, in his official )

capacity as President of the

)

United States,

)

)

Defendant.

)

_________________________________)

MEMORANDUM OPINION AND ORDER

The Court has issued three Opinions in this case. In its

September 28, 2018 Opinion, the Court held that plaintiffs,

approximately 201 Members of the 535 Members of the United

States Senate and House of Representatives, had standing to sue

defendant Donald J. Trump in his official capacity as President

of the United States (“the President”) for alleged violations of

the Foreign Emoluments Clause (“the Clause”). See Blumenthal v.

Trump, 335 F. Supp. 3d 45, 72 (D.D.C. 2018). In its April 30,

2019 Opinion, the Court held that: (1) the term “Emolument” is

broadly defined as any profit, gain, or advantage;

(2) plaintiffs stated a plausible claim against the President

for violations of the Clause; (3) plaintiffs have a cause of

action to seek injunctive relief to prevent the President’s

violations of the Clause; and (4) the relief plaintiffs seek—an

Case 1:17-cv-01154-EGS Document 96 Filed 08/21/19 Page 2 of 8
injunction against the President—is constitutional. See Blumenthal v. Trump, 373 F. Supp. 3d 191, 207, 211, 212 (D.D.C. 2019). In its June 25, 2019 Memorandum Opinion and Order, the Court denied the President’s motions for certification for interlocutory appeal of the Court’s September 28, 2018 Order, April 30, 2019 Order (“collectively ‘dismissal orders’”), and for stay. See Blumenthal v. Trump (“Blumenthal III”), 382 F. Supp. 3d 77, 79 (D.D.C. 2019).
Thereafter, the President petitioned the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) for a writ of mandamus against this Court’s orders denying the President’s motion to dismiss and motion for certification for interlocutory appeal. See Def.’s Notice of Pet. for Writ of Mandamus, ECF No. 90. On July 19, 2019, the D.C. Circuit denied the petition for writ of mandamus without prejudice. In re Donald J. Trump, No. 19-5196, 2019 WL 3285234 (D.C. Cir. July 19, 2019). In so doing, the D.C. Circuit stated that “[a]lthough Petitioner has identified substantial questions concerning standing and the cause of action, he has not shown a clear and indisputable right to dismissal of the complaint in this case on either of those grounds.” Id. at *1. However, the D.C. Circuit remanded this matter “for immediate reconsideration of the motion to certify and the motion to stay the proceedings,” stating that this Court
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did not adequately address whether—given the separation of powers issues present in a lawsuit brought by members of the Legislative Branch against the President of the United States—resolving the legal questions and/or postponing discovery would be preferable, or whether discovery is even necessary (or more limited discovery would suffice) to establish whether there is an entitlement to declaratory and injunctive relief of the type sought by plaintiffs.
Id. Upon receipt of the Order, the Court sua sponte temporarily
stayed discovery until further Order of the Court, see Minute Order, July 19, 2019; and thereafter ordered expedited
supplemental briefing limited to the issues raised in the D.C. Circuit’s Order, see Minute Order, July 22, 2019. The supplemental briefing is now ripe for resolution by the Court.
The President urges the Court to certify its dismissal
orders for interlocutory appeal and stay all proceedings pending the appeal. Def.’s Suppl. Br. in Supp. of His Mot. for
Certification of the Court’s Sept. 28, 2018 and April 30, 2019
Orders Pursuant to 28 U.S.C. § 1292(b) and For a Stay Pending Appeal, ECF No. 93 at 2-3.1
Plaintiffs argue that “they believe that limited discovery focused on the third-party businesses through which the
1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.
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President is accepting foreign-government benefits will best enable this Court to determine which of those entities are accepting foreign-government benefits of the various types identified in Plaintiffs’ complaint.” Pls.’ Suppl. Br. in Opp’n to Def.’s Mot. for Certification Pursuant to 28 U.S.C. § 1292(b) and Motion For a Stay Pending Appeal, ECF No. 94 at 10-11. Plaintiffs state that this limited discovery is “necessary to identify the specific companies in which President Trump holds a verified ownership interest that are receiving each of the aforementioned categories of financial benefits from foreign governments.” Id. at 11.
However, recognizing that it is publicly known that the Trump Organization has established a “voluntary procedure by which [it] identifies and donates to the U.S. Treasury profits from foreign government patronage at its hotels and similar businesses,” plaintiffs state that discovery is not necessary “to allow this Court to grant declaratory and injunctive relief barring the President from accepting foreign emoluments with congressional consent” with regard to some benefits that qualify as emoluments under this Court’s April 30, 2019 Memorandum Opinion. Id. Plaintiffs state that there is also publicly available information about some of the foreign trademarks that have been provisionally approved. Id. Further, plaintiffs state that “[i]f this Court agrees that it could rely on these
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materials to resolve this case on summary judgment, [p]laintiffs are prepared to forgo discovery and to file a motion for summary judgment on an expedited basis.” Id. at 13. Plaintiffs contend that if the Court orders expedited summary judgment briefing, certification for an interlocutory appeal would be inappropriate because it would not “materially advance the ultimate termination of the litigation” and because the D.C. Circuit’s separation-of-powers concerns would be obviated. Id. at 13-14.
The President responds that plaintiffs’ suggestion is “squarely contrary” to the D.C. Circuit’s decision, noting that it had taken “account of the possibility that summary judgment could occur quickly and concluded that the Dismissal Orders nonetheless warranted interlocutory appeal.” Def.’s Suppl. Reply Br. in Supp. of His Mot. for Certification of the Court’s Sept. 28, 2018 and April 30, 2019 Orders Pursuant to 28 U.S.C. § 1292(b) and For a Stay Pending Appeal, ECF No. 95 at 2.
The Court is persuaded that the plaintiffs’ proposals to forgo discovery and/or engage in expedited summary judgment briefing would be inconsistent with the remand order from the D.C. Circuit. Critically, this Court had denied the motions because “in view of th[e] abbreviated discovery and briefing schedule, the President has not ‘carried his burden of demonstrating that interlocutory appeal of this question at this point in time would materially advance the litigation as a
5

Case 1:17-cv-01154-EGS Document 96 Filed 08/21/19 Page 6 of 8
whole.’” Blumenthal III, 382 F. Supp. 3d at 81 (quoting Judicial
Watch Inc. v. Nat’l Energy Policy Dev. Group, 233 F. Supp. 2d
16, 29 (D.D.C. 2002)).
A District Court may certify an interlocutory order for
immediate appeal if the judge is “of the opinion that such order
involves [1] a controlling question of law [2] as to which there
is substantial ground for difference of opinion and [3] that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). In
the remand order, the D.C. Circuit stated that it “is of the
view that th[e dismissal] orders squarely meet the criteria for
certification under Section 1292(b),” noting that:
The question of whether the Foreign Emoluments Clause, U.S. CONST. Art. I, § 9, cl. 8, or other authority gives rise to a cause of action against the President is unsettled, and the standing question arises at the intersection of precedent. Compare Virginia House of Delegates v. Bethune-Hill, ––– U.S. ––––, 139 S. Ct. 1945, ––– L. Ed. 2d –––– (2019), with Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385 (1939). In addition, because either of those issues could be dispositive of this case, it appears to this court that the district court abused its discretion by concluding that an immediate appeal would not advance the ultimate termination of the litigation just because discovery and summary judgment briefing could proceed expeditiously.
6

Case 1:17-cv-01154-EGS Document 96 Filed 08/21/19 Page 7 of 8
In re Donald J. Trump, 2019 WL 3285234, at *1. Accordingly, the Court will certify the dismissal orders for immediate appeal pursuant to 28 U.S.C. § 1292(b).
The Court will also stay proceedings2 in this case pending the interlocutory appeal. See Landis v. North America Co., 299 U.S. 248, 254 (1936) (“the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants”).3
Accordingly, it is hereby ORDERED that [82] Memorandum Opinion and Order dated June 25, 2019 is VACATED; and it is further ORDERED that [60] the President’s motion for certification for interlocutory appeal of the Court’s September 28, 2018 Order is GRANTED; and it is further ORDERED that [71] the President’s motion for certification for interlocutory appeal of the Court’s April 30, 2019 Order and for stay is GRANTED; and it is further
2 Section 1292(b) provides that an “application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C. § 1292(b). 3 Because the Court has the inherent power to stay proceedings on its calendar, it need not consider the factors to be considered by a court of appeals when deciding whether to stay proceedings in a district court pending appeal. Nken v. Holder, 556 U.S. 418 (2009).
7

Case 1:17-cv-01154-EGS Document 96 Filed 08/21/19 Page 8 of 8

ORDERED that the dismissal orders are certified for

immediate appeal pursuant to 28 U.S.C. § 1292(b).

SO ORDERED.

Signed:

Emmet G. Sullivan United States District Judge August 21, 2019

8

 
 949 F.​ ​3d 14 (2020)
Richard BLUMENTHAL, et al., Appellees, v.
Donald J. TRUMP, in His Official Capacity as President of the United States of America, Appellant.
No. 19-5237.
United States Court of Appeals, District of Columbia Circuit.
Argued December 9, 2019. Decided February 7, 2020.
Appeal from the United States District Court for the District of Columbia, (No. 1:17-cv-01154)
Hashim M. Mooppan, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Mark R. Freeman, Washington, DC, Michael S. Raab, Martin V. Totaro, New York, NY, and Joshua Revesz, Attorneys.
Elizabeth B. Wydra, San Francisco, CA, argued the cause for appellees. With her on the brief were Brianne J. Gorod and Brian R. Frazelle.
Katharine M. Mapes and Jeffrey M. Bayne, Washington, DC, were on the brief for amici curiae Separation of Powers Scholars in support of plaintiffs-appellees ​16​*16​Richard Blumenthal, et al. and in support of affirmance.
Walter E. Dellinger, III, Washington, DC, was on the brief for amici curiae Bipartisan Former Members of Congress in support of appellees.
Ruthanne M. Deutsch and Hyland Hunt, Washington, DC, were on the brief for amici curiae Scholars of Standing, Federal Jurisdiction, and Constitutional Law in support of plaintiffs-appellees.
Harold Hongju Koh was on the brief for amici curiae Former National Security Officials in support of plaintiffs-appellees.
Erica C. Lai, Melissa H. Maxman, and Danielle C. Morello, Washington, DC, were on the brief for amici curiae Certain Legal Historians in support of plaintiffs-appellees and affirmance.

Anthony J. May, Waukegan, IL, and Jean M. Zachariasiewicz, Baltimore, MD, were on the brief for amici curiae Administrative Law, Constitutional Law, and Federal Courts Scholars in support of appellees and in support of affirmance.
Tejinder Singh was on the brief for amici curiae Former Government Ethics Officers supporting plaintiffs-appellees and affirmance.
Colin E. Wrabley, Pittsburgh, PA, and M. Patrick Yingling, Chicago, IL, were on the brief for amici curiae The Niskanen Center, et al. in support of appellees and affirmance of the decision below.
Robert D. Dinerstein was on the brief for amici curiae Professor Clark D. Cunningham and Professor Jesse Egbert in support of neither party.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
15​*15​ PER CURIAM:
In this case, 215 Members of the Congress (Members) sued President Donald J. Trump based on allegations that he has repeatedly violated the United States Constitution's Foreign Emoluments Clause (Clause). The district court's denial of the President's motion to dismiss begins with a legal truism: "When Members of Congress sue the President in federal court over official action, a court must first determine whether the dispute is a `Case' or `Controversy' under Article III of the United States Constitution, rather than a political dispute between the elected branches of government." ​Blumenthal v. Trump,​ 335 F. Supp. 3d 45, 49-50 (D.D.C. 2018)​. Although undoubtedly accurate, the district court's observation fails to tell the rest of the story, which story we set forth ​infra.​ Because we conclude that the Members lack standing, we reverse the district court and remand with instructions to dismiss their complaint.
I
Troubled that "one of the weak sides of Republics was their being liable to foreign influence & corruption," 1 ​The Records of the Federal Convention of 1787​ 289 (Max Farrand ed., 1911), the Framers prohibited "Person[s] holding any Office of Profit or Trust under" the United States from accepting from a foreign sovereign "any present, Emolument, Office, or Title, of any kind whatever" without the "Consent of the Congress."​[1]​ Justice Joseph Story described the Clause as "founded in a just jealousy of foreign influence of every sort," ​17​*17​ although he found it "doubtful" that "in a practical sense, it can produce much effect" because
[a] patriot will not be likely to be seduced from his duties to his country by the acceptance of any title, or present, from a foreign power. An intriguing, or corrupt agent, will not be restrained from guilty machinations in the service of a foreign state by such constitutional restrictions.

3 Joseph Story, ​Commentaries on the Constitution of the United States​ § 1346 (Boston, Hilliard, Gray, & Co. 1833). The Members allege that President Trump "has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments" and that "[b]y virtue of that financial interest, [he] has accepted, or necessarily will accept, `Emoluments' from `foreign States' while holding the office of President." Second Amended Complaint at ¶ 2, ​Blumenthal v. Trump,​ No. 17-1154 (D.D.C. June 26, 2019), ECF No. 83 (brackets omitted). They allege the President's failure to seek and obtain congressional consent has "completely nullified," ​id.​ at ¶ 82, the votes they are authorized to cast to approve or disapprove his acceptance of foreign emoluments. ​See id.​ at ¶ 3 ("Because the Foreign Emoluments Clause requires the President to obtain the Consent of the Congress' before accepting otherwise prohibited `Emoluments,' Plaintiffs, as members of Congress, must have the opportunity to cast a binding vote that gives or withholds their `Consent' before the President accepts any such `Emolument.'") (bracket omitted). They further allege that the Clause is "unique." Appellees' Br. at 6.
First, the Clause imposes a procedural requirement (obtain "the Consent of the Congress") that federal officials must satisfy before they take a specific action (accept "any" emolument from "any ... foreign State"). U.S. Const. art. I, § 9, cl. 8. This requirement of a successful prior vote, combined with the right of each Senator and Representative to participate in that vote, means that every time the President accepts an emolument without first obtaining congressional consent, Plaintiffs are deprived of their right to vote on whether to consent to its acceptance. Second, the Foreign Emoluments Clause regulates the ​private​conduct of federal officials. Because President Trump is violating the Clause through his private businesses, without the need for government funds or personnel, Congress cannot use its power of the purse—normally the "ultimate weapon of enforcement available to the Congress"—to stop him. ​United States v. Richardson,​ 418 U.S. 166, 178 n.11 [94 S.Ct. 2940, 41 L.Ed.2d 678] (1974)​. Without that tool or any other effective means of forcing President Trump to conform his personal conduct to the Clause's requirements, [the Members] have no adequate legislative remedy for the President's denial of their voting rights.
Id.​ at 6-7.
The Members filed their complaint on June 14, 2017, seeking declaratory and injunctive relief against the President in his official capacity. The President moved to dismiss, arguing that 1) the Members lack standing; 2) no cause of action authorized their lawsuit; 3) they failed to state a claim upon which relief could be granted; and 4) the requested relief, an injunction against the President in his official capacity, violates the Constitution. Statement of Points and Authorities in Support of Defendant's Motion to Dismiss, ​Blumenthal,​ 335 F. Supp. 3d 45 (D.D.C. 2018) (No. 17-1154)​, ECF No. 15-1. The district court bifurcated the issues, addressed standing ​18​*18​ first and held that the Members "sustained their burden to show that they have standing to bring their claims." ​Blumenthal,​ 335 F. Supp. 3d at 54.​ The President then moved to certify the district court's standing order for interlocutory appeal under 28 U.S.C. § 1292(b), Defendant's Motion for Certification of the Court's September

28, 2018 Order Pursuant to 28 U.S.C. § 1292(b), ​Blumenthal v. Trump,​ 382 F. Supp. 3d 77 (D.D.C. 2019) (No. 17-1154)​, ECF No. 60, which motion was denied on June 25, 2019, ​382 F. Supp. 3d at 83​. While the certification motion was pending, the district court denied the remainder of the President's motion to dismiss, holding that the Members had an implied equitable cause of action for injunctive relief and that they had stated a claim under the Clause. ​Blumenthal v. Trump,​ 373 F. Supp. 3d 191, 207-09 (D.D.C. 2019)​. The President again moved for interlocutory appeal, Motion for Certification for Interlocutory Appeal, 382 F. Supp. 3d 77 (D.D.C. 2019) (No. 17-1154), ECF No. 71, and this motion was also denied, ​382 F. Supp. 3d at 77​. Having exhausted his options in district court, the President petitioned our court for a writ of mandamus. Petition for a Writ of Mandamus to the United States District Court for the District of Columbia & Motion for Stay of District Court Proceedings Pending Mandamus, ​In re Trump,​ 781 F. App'x 1 (D.C. Cir. 2019) (No. 19-5196)​. We denied the petition without prejudice but remanded the matter "for immediate reconsideration of the motion to certify." ​In re Trump,​ 781 F. App'x at 2​. On reconsideration, the district court certified both dismissal denials for interlocutory appeal and stayed its proceedings. ​Blumenthal v. Trump,​ No. 17-1154, 2019 WL 3948478, at *3 (D.D.C. Aug. 21, 2019)​. We then granted the interlocutory appeal. ​In re Trump,​ No. 19-8005, 2019 WL 4200443, at *1 (D.C. Cir. Sept. 4, 2019)​.
On appeal of a dismissal denial, we review the district court's legal determinations de novo and assume the truth of the plaintiff's material factual allegations. ​Z Street v. Koskinen,​ 791 F.3d 24, 28 (D.C. Cir. 2015)​. The district court's jurisdiction "aris[es] under the Constitution ... of the United States." 28 U.S.​ ​C. § 1331. We have jurisdiction under 28 U.S.C. § 1292(b).
II
"[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. Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." ​Spokeo, Inc. v. Robins,​ ___ U.S. ___, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016)​ (quoting ​Raines v. Byrd,​ 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)​) (bracket and quotation marks omitted). To establish Article III standing, a plaintiff must, as an "irreducible constitutional minimum[,] ... (1) suffer[] 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." ​Id.​ (citing ​Lujan v. Defs. of Wildlife,​ 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)​ (quotation marks omitted)). Put differently, our standing inquiry precedes our merits analysis and "focuses on whether the plaintiff is the proper party to bring [the] suit."​[2]​ ​Raines,​ 521 U.S. at 818, 117 S.Ct. 2312​.
19​*19​ ​Raines​ is our starting point when individual members of the Congress seek judicial remedies. In that case, six members of the Congress challenged the constitutionality of the Line Item Veto Act, 2 U.S.C. §§ 691 ​et seq.​ (1994 ed., Supp. II), claiming that it "unconstitutionally expand[ed] the President's power, and violate[d] the requirements of bicameral passage and presentment by granting to the President, acting alone, the authority to `cancel' and thus repeal provisions of federal law," ​Raines,​ 521 U.S. at 816, 117 S.Ct.

2312​ (first quotation marks omitted). The ​Raines​ plaintiffs alleged they were harmed because the statute "diluted their Article I voting power." ​Id.​ at 817, 117 S.Ct. 2312 (bracket omitted). The district court found the ​Raines​ plaintiffs had standing but, on direct appeal, the Supreme Court reversed, holding that they lacked standing.
This case is really no different from ​Raines.​ The Members were not singled out—their alleged injury is shared by the 320 members of the Congress who did not join the lawsuit—and their claim is based entirely on the loss of political power. ​See​Second Amended Complaint at ¶ 5, ​Blumenthal v. Trump,​ No. 17-1154 (D.D.C. June 26, 2019), ECF No. 83 ("Defendant has ... denied Plaintiffs the opportunity to give or withhold their `Consent' to his acceptance of individual emoluments and has injured them in their roles as members of Congress."). We can, therefore, resolve this case by simply applying ​Raines.​ That is, we need not—and do not—consider whether or how ​Raines​ applies elsewhere in order to determine that it plainly applies here. ​See ​Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia,8​ 19 F.3d 476, 485 (D.C. Cir. 2016)​ (The "cardinal principle of judicial restraint" is "if it is not necessary to decide more, it is necessary not to decide more." (quoting ​PDK Labs, Inc. v. D.E.A.,​ 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment)​)).
The Supreme Court's recent summary reading of ​Raines​ that "individual members" of the Congress "lack standing to assert the institutional interests of a legislature" in the same way "a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole," ​Va. House of Delegates v. Bethune-Hill,​ ___ U.S. ___, 139 S. Ct. 1945, 1953-54, 204 L.Ed.2d 305 (2019),​puts paid to any doubt regarding the Members' lack of standing. Here, the (individual) Members concededly seek to do precisely what ​Bethune-Hill​ forbids. ​See​ Appellees' Br. at 12 (asserting Members' entitlement "to vote on whether to consent to an official's acceptance of a foreign emolument before he accepts it ... is not a private right enjoyed in [his] personal capacity, but rather a prerogative of his office.").
The district court erred in holding that the Members suffered an injury based on "[t]he President ... depriving [them] of the opportunity to give or withhold their consent [to foreign emoluments], thereby injuring them in their roles as members of Congress." ​Id.​ at 62 (quotation marks omitted). After ​Raines​ and ​Bethune-Hill,o​ nly an institution can assert an institutional injury provided the injury is not "wholly abstract and widely dispersed." ​20​*20​ ​Raines,​ 521 U.S. at 829, 117 S.Ct. 2312​.​[3]
The district court misread ​Raines​ in declaring that "R​ aines ... teaches​ that it is not necessary for an institutional claim to be brought by or on behalf of the institution." ​Blumenthal,​ 335 F. Supp. 3d at 58​ (emphasis added). Its confusion may be partially due to timing—the district court ruled before ​Bethune-Hill,​ which was decided the following year.
Our standing inquiry is "especially rigorous" in a case like this, where "reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." ​Id.​ at 819-20, 117 S.Ct.

2312; ​see also A​ riz. State Legislature v. Ariz. Indep, Redistricting Comm'n,​ ___ U.S. ___, 135 S. Ct. 2652, 2665 n.12, 192 L.Ed.2d 704 (2015)​ ("[S]uit between Congress and the President would raise separation-of-powers concerns absent" in litigation brought by state legislature). Here, regardless of rigor, our conclusion is straightforward because the Members—29 Senators and 186 Members of the House of Representatives—do not constitute a majority of either body and are, therefore, powerless to approve or deny the President's acceptance of foreign emoluments. ​See ​United States v. Ballin,​ 144 U.S. 1, 7, 12 S.Ct. 507, 36 L.Ed. 321 (1892)​ ("The two houses of [C]ongress are legislative bodies representing larger constituencies. Power is not vested in any one individual, but in the aggregate of the members who compose the body[.]"). For standing, the Members' inability to act determinatively is important, ​see R​ aines,​ 521 U.S. at 829, 117 S.Ct. 2312,​ and, conversely, the size of their cohort is not—so long as it is too small to act. That is, we assess this complaint—filed by 215 Members—no differently from our assessment of a complaint filed by a single Member.​[4]
Because ​Raines​ and ​Bethune-Hill​ control this case, we begin and end our analysis with them.​[5]
The Members can, and likely will, continue to use their weighty voices to make their case to the American people, their colleagues in the Congress and the President himself, all of whom are free to engage that argument as they see fit. But we will not—indeed we ​cannot—​ participate in this debate. The Constitution permits the Judiciary to speak only in the context of an ​21​*21​ Article III case or controversy and this lawsuit presents neither.
Because the district court bifurcated the motion to dismiss proceedings, two of its judgments are before us on appeal. With regard to the first, in which the district court held that the Members have standing, ​Blumenthal,​ 335 F. Supp. 3d 45,​ we reverse and remand with instructions to dismiss the complaint. The second, in which the district court held that the Members have a cause of action and have stated a claim, ​Blumenthal,​ 373 F. Supp. 3d 191,​ is vacated as moot.
So ordered.
[1]​ "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. I, § 9, cl. 8.
[2]​ Different plaintiffs have sued under both the Foreign and Domestic Emoluments Clauses, ​see​ U.S. CONST. art. II, § 1, cl. 7, in cases currently traversing the courts. ​See Citizens for Responsibility & Ethics in W​ ashington v. Trump,​ 939 F.3d 131 (2d Cir. 2019)​ (private parties in hospitality industry allege harm to their business interests caused by the President's unauthorized receipt of emoluments.); ​In re Trump,​ 928 F.3d 360, 365 (4th Cir.)​ (District of Columbia and State of Maryland allege "harm to their sovereign and/or quasi-sovereign interests, as well as proprietary and other financial harms") (quotation marks omitted), ​reh'g en banc granted,​ 780 F. App'x 36 (4th Cir. 2019).
[3]​ The High Court recognized a narrow exception in ​Coleman v. Miller,​ 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939),​ in which it held that members of the Kansas legislature had standing to challenge the "nullification" of their votes on a proposed constitutional amendment. But ​Coleman​—to the extent it survives—is inapposite here because it "stands (at most) for the proposition that legislators ​whose votes would have been sufficient​ to defeat (or enact) a

specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." ​Raines,​ 521 U.S. at 823, 117 S.Ct. 2312​ (emphasis added) (citation omitted).
[4]​ The Members do not represent either House of the Congress, an issue the Members concede, ​see​Transcript of Oral Argument at 24, ​Blumenthal v. Trump,​ No. 19-5237 (D.C. Cir. Dec. 9, 2019) ("JUDGE GRIFFITH: You are not here representing the House of Representatives, correct? MS. WYDRA: Correct.... JUDGE GRIFFITH: You are not here representing the Senate of the United States. MS. WYDRA: You are absolutely correct."), much less the entire Legislative Branch.
[5]​ Our own precedent confirms that the Members lack standing. ​See C​ henoweth v. Clinton,​ 181 F.3d 112 (D.C. Cir. 1999)​ (four House members lacked standing to challenge executive order signed by President); ​Campbell v. Clinton,​ 203 F.3d 19 (D.C. Cir. 2000)​ (thirty-one congressmen lacked standing to seek declaratory judgment that President's use of force against Yugoslavia was unlawful).

 
 No. 19-___

IN THE

Supreme Court of the United States
_____________
SENATORS RICHARD BLUMENTHAL, RICHARD J. DURBIN, PATTY MURRAY, ELIZABETH WARREN, AMY KLOBUCHAR, BERNARD
SANDERS, PATRICK LEAHY, SHELDON WHITEHOUSE, CHRISTOPHER A. COONS, MAZIE K. HIRONO, CORY A. BOOKER, KAMALA D.
HARRIS, MICHAEL F. BENNET, MARIA CANTWELL, BENJAMIN L. CARDIN, TOM CARPER, CATHERINE CORTEZ MASTO, TAMMY
DUCKWORTH, KIRSTEN E. GILLIBRAND, MARTIN HEINRICH, TIM KAINE, EDWARD J. MARKEY, JEFF MERKLEY, CHRIS MURPHY, JACK REED, BRIAN SCHATZ, TOM UDALL, CHRIS VAN HOLLEN,
AND RON WYDEN, Petitioners, v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, Respondent.
_____________
On Petition for a Writ of Certiorari to the U.S. Court of Appeals for the District of Columbia Circuit
_____________
PETITION FOR A WRIT OF CERTIORARI
_____________
ELIZABETH B. WYDRA BRIANNE J. GOROD* BRIAN R. FRAZELLE CONSTITUTIONAL
ACCOUNTABILITY CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org Counsel for Petitioners

July 6, 2020

* Counsel of Record

QUESTION PRESENTED Do legislators have standing to seek judicial relief when their votes have been “completely nullified,” Raines v. Byrd, 521 U.S. 811, 823 (1997)?
(i)

ii
PARTIES TO THE PROCEEDINGS
Plaintiffs-appellees in the court of appeals were Senators Richard Blumenthal, Richard J. Durbin, Patty Murray, Elizabeth Warren, Amy Klobuchar, Bernard Sanders, Patrick Leahy, Sheldon Whitehouse, Christopher A. Coons, Mazie K. Hirono, Cory A. Booker, Kamala D. Harris, Michael F. Bennet, Maria Cantwell, Benjamin L. Cardin, Tom Carper, Catherine Cortez Masto, Tammy Duckworth, Kirsten E. Gillibrand, Martin Heinrich, Tim Kaine, Edward J. Markey, Jeff Merkley, Chris Murphy, Jack Reed, Brian Schatz, Tom Udall, Chris Van Hollen, and Ron Wyden; and Representatives Jerrold Nadler, Alma Adams, Pete Aguilar, Nanette Diaz Barragán, Karen Bass, Joyce Beatty, Ami Bera, Donald S. Beyer, Jr., Sanford D. Bishop, Jr., Earl Blumenauer, Lisa Blunt Rochester, Suzanne Bonamici, Brendan F. Boyle, Anthony Brown, Julia Brownley, Cheri Bustos, G.K. Butterfield, Salud O. Carbajal, Tony Cárdenas, André Carson, Sean Casten, Kathy Castor, Joaquin Castro, Judy Chu, David N. Cicilline, Gilbert R. Cisneros, Jr., Katherine Clark, Yvette D. Clarke, William Lacy Clay, Emanuel Cleaver II, James E. Clyburn, Steve Cohen, Gerald E. Connolly, Jim Cooper, J. Luis Correa, Jim Costa, Joe Courtney, Charlie Crist, Danny K. Davis, Susan A. Davis, Madeline Dean, Peter DeFazio, Diana DeGette, Rosa L. DeLauro, Suzan K. DelBene, Val Butler Demings, Mark DeSaulnier, Ted Deutch, Debbie Dingell, Lloyd Doggett, Michael F. Doyle, Eliot L. Engel, Veronica Escobar, Anna G. Eshoo, Adriano Espaillat, Dwight Evans, Bill Foster, Lois Frankel, Marcia L. Fudge, Tulsi Gabbard, Ruben Gallego, John Garamendi, Jesús G. “Chuy” Garcia, Sylvia Garcia, Jimmy Gomez, Al Green, Raul M. Grijalva, Deb Haaland, Josh Harder, Alcee L. Hastings, Jahana Hayes, Denny Heck, Brian Higgins, James A. Himes, Steny H.

iii
Hoyer, Jared Huffman, Sheila Jackson Lee, Pramila Jayapal, Hakeem Jeffries, Eddie Bernice Johnson, Henry C. “Hank” Johnson, Jr., Marcy Kaptur, William R. Keating, Robin L. Kelly, Joseph P. Kennedy III, Ro Khanna, Daniel T. Kildee, Derek Kilmer, Ann Kirkpatrick, Raja Krishnamoorthi, James R. Langevin, Rick Larsen, John B. Larson, Brenda L. Lawrence, Al Lawson, Barbara Lee, Andy Levin, Mike Levin, John Lewis, Ted W. Lieu, Dave Loebsack, Zoe Lofgren, Alan Lowenthal, Nita M. Lowey, Ben Ray Luján, Stephen F. Lynch, Carolyn B. Maloney, Sean Patrick Maloney, Doris Matsui, Betty McCollum, A. Donald McEachin, James P. McGovern, Ann McLane Kuster, Jerry McNerney, Gregory W. Meeks, Grace Meng, Gwen S. Moore, Joseph D. Morelle, Seth Moulton, Debbie Mucarsel-Powell, Grace F. Napolitano, Richard E. Neal, Joe Neguse, Donald Norcross, Alexandria Ocascio-Cortez, Ilhan Omar, Frank Pallone, Jr., Jimmy Panetta, Bill Pascrell, Jr., Donald M. Payne, Jr., Nancy Pelosi, Ed Perlmutter, Scott H. Peters, Dean Phillips, Chellie Pingree, Mark Pocan, Ayanna Pressley, David E. Price, Mike Quigley, Jamie Raskin, Kathleen M. Rice, Cedric L. Richmond, Harley E. Rouda, Lucille Roybal-Allard, C.A. Dutch Ruppersberger, Bobby L. Rush, Tim Ryan, Linda T. Sánchez, John P. Sarbanes, Mary Gay Scanlon, Jan Schakowsky, Adam B. Schiff, Bradley S. Schneider, Robert C. “Bobby” Scott, José E. Serrano, Terri Sewell, Donna Shalala, Brad Sherman, Albio Sires, Adam Smith, Darren Soto, Jackie Speier, Greg Stanton, Eric Swalwell, Mark Takano, Bennie G. Thompson, Mike Thompson, Dina Titus, Rashida Tlaib, Paul D. Tonko, Norma J. Torres, Lori Trahan, Juan Vargas, Marc Veasey, Filemon Vela, Nydia M. Velázquez, Debbie Wasserman Schultz, Maxine Waters, Bonnie Watson Coleman, Peter Welch, Jennifer Wexton, Susan Wild, Frederica S. Wilson, and John Yarmuth.

iv
Defendant-appellant in the court of appeals was Donald J. Trump, in his official capacity as President of the United States.

v
RELATED PROCEEDINGS
The proceedings directly related to this petition are:
Blumenthal, et al. v. Trump, No. 19-5237, U.S. Court of Appeals for the District of Columbia Circuit (opinion, order, and judgment entered February 7, 2020).
In re Trump, No. 19-8005, U.S. Court of Appeals for the District of Columbia Circuit (order entered September 4, 2019).
In re Trump, No. 19-5196, U.S. Court of Appeals for the District of Columbia Circuit (order entered July 19, 2019).
Blumenthal, et al. v. Trump, No. 1:17-cv-1154, U.S. District Court for the District of Columbia (opinions and orders entered September 28, 2018; April 30, 2019; June 25, 2019; and August 21, 2019).

vi TABLE OF CONTENTS
QUESTION PRESENTED ............................ PARTIES TO THE PROCEEDINGS ............ RELATED PROCEEDINGS .......................... TABLE OF CONTENTS ................................ TABLE OF AUTHORITIES .......................... INTRODUCTION .......................................... OPINIONS AND ORDERS BELOW ............ JURISDICTION ............................................. CONSTITUTIONAL PROVISIONS
INVOLVED ............................................... STATEMENT OF THE CASE .......................
A. The Foreign Emoluments Clause ....... B. President Trump’s Violations ............. C. The District Court’s Decisions ............ D. The Court of Appeals’ Decisions ......... REASONS FOR GRANTING THE PETITION ................................................ I. The Decision Below Departs from This Court’s Precedent by Eliminating Standing for Individual Legislators When Their Votes Are Completely Nullified ..................................................... II. The Issues at Stake Are Exceptionally Important ................................................... CONCLUSION ..............................................

Page i ii v
vi vii
1 3 3
3 3 3 7 9 15
17
17
27 33

Cases

vii TABLE OF AUTHORITIES

Page(s)

Arizona State Legislature v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015) ........................... passim

Bowsher v. Synar,

478 U.S. 714 (1986) ...............................

26

Byrd v. Raines,

956 F. Supp. 25 (D.D.C. 1997) ..............

20

Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) ................. passim

Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999) ............... passim

Coleman v. Miller, 307 U.S. 433 (1939) ............................... passim

Comm. on Oversight & Gov’t Reform v.

Holder,

979 F. Supp. 2d 1 (D.D.C. 2013) ...........

11

Cummings v. Murphy, 321 F. Supp. 3d 92 (D.D.C. 2018) ......... 9, 12

District of Columbia v. Trump,

315 F. Supp. 3d 875 (D. Md. 2018) .......

14

Franklin v. Massachusetts,

505 U.S. 788 (1992) ...............................

15

Hollingsworth v. Perry,

570 U.S. 693 (2013) ...............................

26

viii

TABLE OF AUTHORITIES – cont’d Page(s)

Kucinich v. Bush,

236 F. Supp. 2d 1 (D.D.C. 2002) ...........

29

Kucinich v. Obama,

821 F. Supp. 2d 110 (D.D.C. 2011) .......

29

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ...............................

31

Powell v. McCormack, 395 U.S. 486 (1969) ............................... 10, 22

Raines v. Byrd, 521 U.S. 811 (1997) ............................... passim

Swan v. Clinton,

100 F.3d 973 (D.C. Cir. 1996) ...............

15

United States v. Richardson,

418 U.S. 166 (1974) ...............................

30

Virginia House of Delegates v. BethuneHill, 139 S. Ct. 1945 (2019) ........................... passim

Constitutional Provisions

U.S. Const. art. I, § 1 ...............................

7

U.S. Const. art. I, § 3, cl. 1 ...................... 7, 21

U.S. Const. art. I, § 5, cl. 3 ...................... 7, 21

U.S. Const. art. I, § 7, cl. 2 ......................

5

U.S. Const. art. I, § 9, cl. 8 .................. ... passim

ix

TABLE OF AUTHORITIES – cont’d Page(s)

U.S. Const. art. II, § 1, cl. 7......................

5

Statutes and Legislative Materials

5 U.S.C. § 7342 ........................................

6

28 U.S.C. § 1254(1)...................................

3

28 U.S.C. § 1292(b)...................................

15

37 U.S.C. § 908 ........................................

6

4 Stat. 792 (Feb. 13, 1835) .......................

4

5 Stat. 730 (Mar. 1, 1845) ........................

4

10 Stat. 830 (June 29, 1854) ....................

4

11 Stat. 152 (Aug. 30, 1856) ....................

4

20 Stat. 587 (Dec. 15, 1877) .....................

4

21 Stat. 603 (Jan. 31, 1881) .....................

4

29 Stat. 759 (Apr. 2, 1896) .......................

4

40 Stat. 845 (July 9, 1918) .......................

4

48 Stat. 1267 (June 27, 1934) ..................

4

56 Stat. 662 (July 20, 1942) .....................

4

65 Stat. A148 (Oct. 30, 1951) ...................

4

72 Stat. A159 (Aug. 27, 1958) ..................

4

80 Stat. 1634 (July 4, 1966) .....................

4

8 Annals of Cong. (1798) (Joseph Gales

ed., 1834) ..............................................

4, 6

x

TABLE OF AUTHORITIES – cont’d Page(s)

105 Cong. Rec. (daily ed. Apr. 28,

1959) ......................................................

6

H.R. Rep. No. 21-170 (1830) ....................

4

H.R. Rep. No. 65-695 (1918) ....................

6

H. Journal, 5th Cong., 2d Sess. (1798) ....

5

H. Journal, 34th Cong., 1st Sess.

(1856) .....................................................

6

2 The Records of the Federal Convention of 1787 (Max Farrand ed., 1911) .......... 1, 3, 5

S. Rep. No. 61-373 (1910).........................

4

S. Journal, 26th Cong., 1st Sess.

(1840) .....................................................

5

S. Journal, 37th Cong., 2d Sess.

(1862) .....................................................

6

Books, Articles, and Other Authorities
Dan Alexander & Matt Drange, Trump’s Biggest Potential Conflict of Interest Is Hiding in Plain Sight, Forbes (Feb. 13, 2018) ................................................
David A. Fahrenthold & Jonathan O’Connell, At President Trump’s Hotel in New York, Revenue Went up This Spring—Thanks to a Visit from BigSpending Saudis, Wash. Post (Aug. 3, 2018) ......................................................

8, 28 8

xi

TABLE OF AUTHORITIES – cont’d Page(s)

Kyle Griffin (@kylegriffin1), Twitter

(Oct. 21, 2019, 1:55 PM),

https://twitter.com/kylegriffin1/status/

1186340167193366529 .........................

9

Julia Harte, Foreign Government Leases

at Trump World Tower Stir More

Emoluments Concerns, Reuters (May

2, 2019) .................................................

8

Anita Kumar, Foreign Governments Are

Finding Ways To Do Favors for

Trump’s Business, McClatchy (Jan. 2,

2018) .....................................................

8

Letter from James Madison to David

Humphreys (Jan. 5, 1803) ...................

4

4 John Bassett Moore, A Digest of

International Law (1906)......................

5

Jonathan O’Connell, From Trump Hotel

Lobby to White House, Malaysian

Prime Minister Gets VIP Treatment,

Wash. Post (Sept. 12, 2017) .................

8

President Benjamin Harrison

(Oct. 14, 2012),

https://www.benjaminharrison.org/ .....

6

1
INTRODUCTION
The Foreign Emoluments Clause of the Constitution requires federal officials to obtain congressional consent before accepting rewards from foreign states, U.S. Const. art. I, § 9, cl. 8, a requirement the Framers imposed because they recognized “the necessity” of ensuring that officials remain “independent of external influence,” 2 The Records of the Federal Convention of 1787, at 389 (Max Farrand ed., 1911) (hereinafter “Records”). Since the eighteenth century, U.S. presidents and other federal officials have obeyed the Clause’s mandate by declining to accept rewards from foreign states without prior consent.
President Trump, however, has been violating this critical constitutional prohibition for his entire term in office. By maintaining ownership of his companies while they conduct business with foreign governments—without seeking or obtaining congressional consent for these transactions—the President is accepting unauthorized financial benefits from foreign states. His defense is that the Clause prohibits him only from accepting fees for services that he personally provides with his own labor, and that it imposes no limit on the vast sums of money foreign governments are paying him through his businesses for the services of his employees. See Pet. App. 70-71.
Because President Trump is denying members of Congress an institutional prerogative to which the Constitution entitles them—the right to cast effective votes on whether he may accept specific foreign emoluments before he accepts them—Petitioners filed suit, seeking declaratory and injunctive relief preventing the President from accepting foreign emoluments without first obtaining congressional consent. In a thorough opinion, the district court held that Petitioners have Article III standing, explaining that “the

2
President’s complete nullification of plaintiffs’ votes is entirely different from the ‘abstract dilution of legislative power’ alleged in Raines [v. Byrd, 521 U.S. 811 (1997)].” Pet. App. 46 (quoting Raines, 521 U.S. at 826).
The court of appeals reversed but did not engage with the district court’s analysis. Instead, in a cursory opinion, the court of appeals held that under Raines “only an institution can assert an institutional injury,” and that Petitioners lack standing because they “do not constitute a majority” of the House or Senate. Id. at 10-11. This new rule misunderstands the concept of “institutional injury” articulated in Raines. And based on that misunderstanding, it categorically prevents individual members of Congress from enforcing any of their institutional prerogatives in court.
But since this Court first recognized institutional injuries as cognizable in Coleman v. Miller, 307 U.S. 433 (1939), it has been careful not to foreclose all standing for individual members of Congress. Instead, even as it has clarified that individual members enjoy standing to sue only in narrow circumstances, it has preserved their ability to seek judicial relief in at least one situation: when their votes have been “completely nullified.” Raines, 521 U.S. at 823. That is the case here. By refusing to seek congressional consent before accepting payments and other benefits from foreign governments, President Trump is denying Petitioners their right to cast specific votes on whether he may accept those benefits and to have their votes given effect.
The court of appeals, however, short-circuited this analysis with its categorical new rule. Because its shallow treatment of legislative standing departs from this Court’s precedent, and because its decision undermines key safeguards of our constitutional structure, review by this Court is imperative.

3
OPINIONS AND ORDERS BELOW
The opinion of the court of appeals, Pet. App. 3, is reported at 949 F.3d 14. The opinions of the district court denying the motion to dismiss, Pet. App. 14 and 64, are reported at 335 F. Supp. 3d 45 and 373 F. Supp. 3d 191. The opinions of the district court addressing interlocutory appeal, Pet. App. 105 and 118, are available at 382 F. Supp. 3d 77 and 2019 WL 3948478. The orders of the court of appeals addressing interlocutory appeal, Pet. App. 115 and 125, are available at 781 Fed. App’x 1 and 2019 WL 4200443.
JURISDICTION
The judgment of the court of appeals was entered on February 7, 2020. This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Foreign Emoluments Clause provides:
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. I, § 9, cl. 8.
STATEMENT OF THE CASE
A. The Foreign Emoluments Clause
Recognizing that foreign states would “intermeddle in our affairs, and spare no expence to influence them,” 2 Records at 268, the Framers fortified our national charter with safeguards against “foreign influence and corruption,” 1 id. at 289. Chief among them is the Foreign Emoluments Clause. Reflecting “the

4
necessity” of ensuring that federal officials remain “independent of external influence,” 2 id. at 389, the Clause requires “the Consent of the Congress” before an official accepts “any present, Emolument, Office, or Title, of any kind whatever,” from any foreign state. U.S. Const. art. I, § 9, cl. 8. In short, perceiving that foreign rewards “opened an avenue to foreign influence,” 8 Annals of Cong. 1587 (1798) (Joseph Gales ed., 1834), the Framers demanded that “every present . . . be laid before Congress,” id. at 1585, and they vested members of Congress with “the exclusive authority to permit the acceptance of presents from foreign Governments,” Letter from James Madison to David Humphreys (Jan. 5, 1803).
The Foreign Emoluments Clause’s “sweeping and unqualified” language, 18 Op. O.L.C. 13, 17 (1994), has long been understood to require consent for even “trifling presents,” 8 Annals of Cong. 1587, encompassing rewards as diverse as jewelry, household luxuries, ornamental novelties, medals, tokens of thankfulness, symbolic military decorations, and compensation for services provided. See, e.g., H.R. Rep. No. 21-170 (1830); 4 Stat. 792 (Feb. 13, 1835); 5 Stat. 730 (Mar. 1, 1845); 10 Stat. 830 (June 29, 1854); 11 Stat. 152 (Aug. 30, 1856); 20 Stat. 587 (Dec. 15, 1877); 21 Stat. 603, 604 (Jan. 31, 1881); 29 Stat. 759 (Apr. 2, 1896); S. Rep. No. 61-373, at 2-20 (1910); 40 Stat. 845, 872 (July 9, 1918); 48 Stat. 1267 (June 27, 1934); 56 Stat. 662 (July 20, 1942); 65 Stat. A148 (Oct. 30, 1951); 72 Stat. A159 (Aug. 27, 1958); 80 Stat. 1634 (July 4, 1966).
While the Clause is severe, its language is clear. And under that language, “[t]he decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress.” 17 Op. O.L.C. 114, 121 (1993). Thus, in contrast with other

5
constitutional prohibitions that give members of Congress no special role to play, e.g., U.S. Const. art. II, § 1, cl. 7 (Domestic Emoluments Clause), the Framers deliberately gave members of Congress an ongoing procedural role in vetting foreign emoluments.
Equally deliberate was the Framers’ decision to require a prior act of affirmative congressional consent before foreign emoluments may be accepted. The Framers knew how to assign legal effect to an absence of legislative action. See id. art. I, § 7, cl. 2 (bills presented to the President become law if not returned within ten days); 2 Records at 80, 83 (declining to adopt proposal that would allow appointments to take effect unless the Senate voted to reject the nominee). Eschewing that model, the Framers placed a formidable burden on any official wishing to accept a foreign reward: convince majorities in both Houses of Congress to give their affirmative consent. See 4 John Bassett Moore, A Digest of International Law 582 (1906) (quoting 1834 message from the Secretary of State reminding diplomats not to accept foreign presents “unless the consent of Congress shall have been previously obtained”).
The mechanism for complying with the Clause, however, is straightforward: an official who wishes to accept a foreign emolument simply writes to Congress describing that benefit and seeking Congress’s direction. This procedure is long settled by historical practice. See, e.g., H. Journal, 5th Cong., 2d Sess. 275 (1798) (letter from ambassador requesting decision on “whether he shall accept or decline the customary presents given, by [foreign] Courts, . . . which he has declined receiving, without first having obtained the consent of the Government of the United States”); S. Journal, 26th Cong., 1st Sess. 385 (1840) (letter from President Van Buren describing gifts offered to him and

6
“deem[ing] it my duty to lay the proposition before Congress”); H. Journal, 34th Cong., 1st Sess. 686-87 (1856) (letter from President Pierce requesting consent for naval officers to accept gifts); S. Journal, 37th Cong., 2d Sess. 243 (1862) (letter from President Lincoln reporting gifts offered to him and “submit[ting] for . . . consideration the question as to the[ir] proper place of deposit”); President Benjamin Harrison (Oct. 14, 2012), https://www.benjaminharrison.org/ (letter from President Harrison requesting consent to accept two medals, “[i]f it is appropriate that I should have them”); H.R. Rep. No. 65-695, at 1 (1918) (letter from President Wilson requesting consent for embassy officials to accept gifts); 105 Cong. Rec. 6879-80 (daily ed. Apr. 28, 1959) (letter from Defense Secretary requesting consent for military officers to accept foreign decorations).
When Congress wishes to approve an official’s request to accept a foreign emolument, or to give direction on that request, it passes a resolution or private bill.1 And if Congress wishes to decline a request, it can simply do nothing. Because acceptance requires affirmative consent, inaction by either House functions as a denial of that consent. See, e.g., 8 Annals of Cong. 1593 (1798) (failure of resolution in House after Senate passage); H.R. Rep. No. 65-695, at 5 (1918) (noting that despite State Department recommendations to consent to gifts, “[i]t has not been the pleasure of Congress to act favorably upon these recommendations”).
1 In addition, legislation can provide blanket consent for particular classes of benefits, e.g., 5 U.S.C. § 7342 (gifts of minimal value and decorations); 37 U.S.C. § 908 (civil employment by foreign governments). Where blanket consent has not been given, however, “any other emolument stands forbidden.” 6 Op. O.L.C. 156, 158 (1982).

7
In sum, the procedure required by the Foreign Emoluments Clause is textually clear and historically settled. Before an official accepts an emolument from a foreign state, he or she must obtain the affirmative consent of Congress.
Congress “consist[s] of a Senate and House of Representatives,” U.S. Const. art. I, § 1, and each member of Congress has a right to vote on every matter that comes before those bodies, see id. art. I, § 3, cl. 1 (“each Senator shall have one Vote”); id. art. I, § 5, cl. 3 (requiring the House and Senate to record “the Yeas and Nays of the Members” upon request). The Constitution, therefore, entitles individual members of Congress to vote on whether to consent to an official’s acceptance of a foreign emolument before he or she accepts it.
B. President Trump’s Violations
Since the eighteenth century, U.S. presidents and other federal officials have obeyed the Foreign Emoluments Clause’s clear mandate, either by seeking Congress’s consent before accepting rewards from foreign states or by declining to accept such rewards. See Pet. App. 22-24.
Not President Trump. By maintaining ownership of his companies while allowing them to conduct business with foreign governments, the President is accepting payments and other financial benefits from foreign states. Yet President Trump has not sought, much less obtained, congressional consent for any of these transactions. Instead, he has disregarded the Constitution’s structural safeguard “against every kind of influence by foreign governments upon officers of the United States.” 10 Op. O.L.C. 96, 98 (1986) (quoting 24 Op. Att’y Gen. 116, 117 (1902)).
The results are predictable. Foreign officials flock

8
to the President’s hotels and resorts, reportedly paying up to hundreds of thousands of dollars for celebrations and blocks of rooms. Foreign ambassadors explain that hosting events at Trump properties is “a statement that we have a good relationship with this president.”2 Prime ministers travel in motorcades from the President’s Washington, D.C., hotel straight to the White House to meet with him.3
And that is just the start. Foreign governments are reportedly paying President Trump untold amounts for rent and fees at his commercial and residential towers,4 many having signed leases soon after he took office.5 Abroad, foreign states have granted the President lucrative intellectual property rights, Pet. App. 67, 121, and have “donated public land, approved permits and eased environmental regulations for Trump-branded developments.”6 Rather than comply with the Foreign Emoluments Clause before accepting these benefits, President Trump has disparaged “you people with this phony Emoluments
2 David A. Fahrenthold & Jonathan O’Connell, At President Trump’s Hotel in New York, Revenue Went up This Spring— Thanks to a Visit from Big-Spending Saudis, Wash. Post (Aug. 3, 2018).
3 Jonathan O’Connell, From Trump Hotel Lobby to White House, Malaysian Prime Minister Gets VIP Treatment, Wash. Post (Sept. 12, 2017).
4 Dan Alexander & Matt Drange, Trump’s Biggest Potential Conflict of Interest Is Hiding in Plain Sight, Forbes (Feb. 13, 2018).
5 Julia Harte, Foreign Government Leases at Trump World Tower Stir More Emoluments Concerns, Reuters (May 2, 2019).
6 Anita Kumar, Foreign Governments Are Finding Ways To Do Favors for Trump’s Business, McClatchy (Jan. 2, 2018).

9
Clause.”7
Worst of all, because the President is not seeking congressional consent before accepting benefits from foreign governments, the full range of those benefits— and their sources—remain unknown.
Under the Constitution, each of these transactions requires the prior consent of Congress. By engaging in these transactions without seeking and obtaining the prior approval of majorities in both Houses of Congress, President Trump is denying Petitioners specific votes to which they are constitutionally entitled. And because Congress cannot adequately remedy this violation of Petitioners’ voting rights without the aid of the courts, Petitioners filed suit in June 2017, seeking a declaratory judgment that the President is violating the Clause and an injunction ordering him to stop accepting foreign emoluments unless he first obtains congressional consent. Pet. App. 6.
The President moved to dismiss Petitioners’ suit, arguing among other things that Petitioners lack standing. Id.
C. The District Court’s Decisions
In September 2018, the district court denied the President’s motion in part, holding that Petitioners have standing to maintain this action. Pet. App. 14.
The district court began by describing the dichotomy this Court recognized in Raines v. Byrd between two categories of harms to individual legislators: “[A]n individual Member of Congress . . . can allege either a personal injury or an institutional injury.” Id. at 32; accord Cummings v. Murphy, 321 F. Supp. 3d 92, 107
7 Kyle Griffin (@kylegriffin1), Twitter (Oct. 21, 2019, 1:55 PM), https://twitter.com/kylegriffin1/status/1186340167193366529.

10
(D.D.C. 2018) (“[W]here suit is brought by individual Members of Congress, Raines establishes a binary rubric of potential injuries,” under which “the alleged injury . . . is either personal or institutional.”); see Pet. App. 27-30 (discussing Raines’s differentiation of Powell v. McCormack, 395 U.S. 486 (1969) (involving “personal injury”), from Coleman v. Miller, 307 U.S. 433 (1939) (involving “institutional injury”)). “If the injury is personal, standing is present when the injury arises out of something to which the member is personally entitled, such as the salary associated with his or her seat.” Pet. App. 32.
“As to an institutional injury,” the district court continued, this Court “has recognized standing when a legislator’s vote has been completely nullified.” Id. (citing Raines, 521 U.S. at 823). That was the case in Coleman v. Miller, where the plaintiffs were Kansas state legislators whose votes on a measure had been “overridden and virtually held for naught.” 307 U.S. at 438.
While Coleman did not “implicate[] federal separation-of-powers concerns,” the district court explained, “the Raines Court specifically declined to hold that Coleman would be inapplicable ‘to a similar suit brought by federal legislators.’” Pet. App. 33 (quoting Raines, 521 U.S. at 824 n.8). Moreover, Coleman was a case brought by individual legislators who did not sue on behalf of their legislative body, but rather challenged the nullification of their own individual votes. And this Court “reaffirmed Coleman in both Raines and Arizona State Legislature [v. Arizona Independent Redistricting Commission, 135 S. Ct. 2652 (2015)], necessarily holding that the institutional injury alleged—vote nullification—was sufficiently personal to each of the individual plaintiffs to satisfy the standing requirement under Article III.” Id. at 40 (citing

11
Raines, 521 U.S. at 821; Ariz. State Legislature, 135 S. Ct. at 2665).
In sum, as the district court explained, this Court “has recognized at least one type of institutional injury for which legislators may have standing to sue: complete vote nullification.” Id. at 40.
The district court also recognized that Raines, which denied standing to several members of Congress who sought to challenge the constitutionality of a federal law, did not discard vote nullification as a cognizable injury. “In Raines, plaintiffs sued after being on the losing side of the vote that enacted the Line Item Veto Act, alleging that their injury was the diminution of legislative power caused by the Act.” Id. at 49 (citing Raines, 521 U.S. at 814). Upholding standing there, the district court explained, “would have required a drastic extension of Coleman because the nature of the vote nullification in Coleman was different from the ‘abstract dilution of legislative power’ alleged in Raines.” Id. at 46 (quoting Raines, 521 U.S. at 826); accord Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 13 (D.D.C. 2013) (noting that the Raines plaintiffs “were simply complaining that the Act would result in some abstract dilution of the power of Congress as a whole” (quotation marks omitted)).
“Here, by contrast,” the district court explained, “the President’s complete nullification of plaintiffs’ votes is entirely different from the ‘abstract dilution of legislative power’ alleged in Raines.” Pet. App. 46. Unlike Petitioners, “the Raines plaintiffs could not allege that their votes had been nullified in the past; rather, they had simply lost the vote on the Act. And the Raines plaintiffs could not allege that their votes would be nullified in the future because they had a variety of legislative remedies at their disposal.” Id. at 30 (citing Raines, 521 U.S. at 824).

12
Significantly, as the district court emphasized, Raines “did not hold that it would be necessary for an institutional claim to be brought by or on behalf of the institution.” Id. at 42. “Rather, the fact that the case had not been authorized by the institution was a relevant consideration, but not dispositive, in determining that the Raines plaintiffs lacked standing.” Id.; accord Raines, 521 U.S. at 829 (“We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” (emphasis added)); id. at 829-30 (“Whether the case would be different if . . . th[is] circumstance[] were different we need not now decide.”). Indeed, as the district court also observed, “the claim in Coleman was not brought on behalf of the state senate as an institutional plaintiff, but rather by a bloc of individual members who had voted not to ratify the constitutional amendment.” Pet. App. 42 (citing Coleman, 307 U.S. at 438); accord Raines, 521 U.S. at 821 (describing Coleman as a case “in which we have upheld standing for legislators (albeit state legislators) claiming an institutional injury”). And while this Court subsequently “distinguished Raines from Arizona State Legislature because the latter was brought by the legislature as an institution,” Arizona likewise “did not hold that an institutional claim may be brought only by the institution.” Pet. App. 42 (citing Ariz. State Legislature, 135 S. Ct. at 2664).
The district court therefore recognized that when legislators’ votes are allegedly nullified Raines permits those individual legislators to sue to protect their own individual votes. Accord Cummings, 321 F. Supp. 3d at 105 (“Complete vote nullification is clearly a type of an institutional injury . . . . that grants individual legislators standing to seek redress consistent with

13
Raines.” (citations omitted)).
The district court went on to discuss post-Raines precedent from the D.C. Circuit. In Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), the district court explained, the D.C. Circuit “understood vote nullification ‘to mean treating a vote that did not pass as if it had, or vice versa.’” Pet. App. 38 (quoting Campbell, 203 F.3d at 22). And in Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999), the Circuit “suggested that notwithstanding Raines, a single Member of Congress could have standing to sue based on a vote nullification claim when it was the President’s action, rather than ‘a lack of legislative support,’ that nullified the Member’s vote.” Id. at 38 (quoting Chenoweth, 181 F.3d at 117). But under both decisions, the district court emphasized, “individual Members of Congress do not have standing to sue the Executive Branch when their institutional injury is such that they can obtain their remedy in Congress.” Id. at 38.
Applying this precedent, the district court held that Petitioners have standing to allege that President Trump has completely nullified their votes under the Foreign Emoluments Clause: “Accepting the allegations in the Complaint as true, . . . the President is accepting prohibited foreign emoluments without asking and without receiving a favorable reply from Congress,” thereby “depriving plaintiffs of the opportunity to give or withhold their consent” through their votes. Id. at 40-41. As the district court explained, “[p]laintiffs adequately allege that the President has completely nullified their votes in the past because he has accepted prohibited foreign emoluments as though Congress had provided its consent.” Id. at 41. And the President “will completely nullify their votes in the future for the same reason, as plaintiffs allege that he intends to continue this practice.” Id. at 41-42.

14
Moreover, the district court noted that “although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.” Id. at 47.
Notably, the district court “agree[d] with the President that, ‘when legislators possess political tools with which to remedy their purported injury, they may not seek the aid of the Judiciary.’” Id. at 50 (quoting motion to dismiss). But the district court discussed at length why, unlike the plaintiffs in Raines, Petitioners “have no adequate legislative remedies.” Id. at 46; see id. at 50-54. “Accordingly, although this case implicates separation-of-powers concerns, finding standing here ‘keep[s] the Judiciary’s power within its proper constitutional sphere.’” Id. at 59 (quoting Raines, 521 U.S. at 820).
In April 2019, the district court denied the President’s motion to dismiss in full after addressing the remainder of his arguments for dismissal. Id. at 63. The district court held that Petitioners have stated a plausible claim against President Trump for violating the Foreign Emoluments Clause. Rejecting the President’s defense that the Clause does not cover payments from business transactions, the district court concluded that “the weight of the evidence in foundingera dictionaries and other contemporaneous sources” supports Petitioners’ contrary interpretation, a result confirmed by the “surrounding text, structure, adoption, historical interpretation, and purpose of the Clause, as well as Executive Branch practice.” Id. at 76 (quotation marks omitted); accord District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018). The district court also held that Petitioners have an equitable cause of action to seek prospective relief from President Trump’s violations, and that while “[judicial] restraint is appropriate,” such relief is

15
constitutionally permissible to enforce the ministerial duty of “seeking congressional consent prior to accepting prohibited foreign emoluments.” Pet. App. 102-03 (citing Franklin v. Massachusetts, 505 U.S. 788, 802 (1992), and Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996)).
D. The Court of Appeals’ Decisions
In June 2019, the district court denied the President’s motion to certify its orders for immediate interlocutory appeal, finding that an immediate appeal would not likely “materially advance the ultimate termination of the litigation,” 28 U.S.C. § 1292(b), because the parties had proposed filing cross motions for summary judgment within six months. Pet. App. 110. President Trump then sought a writ of mandamus from the court of appeals directing the district court to dismiss Petitioners’ complaint or, in the alternative, to certify the district court’s orders for interlocutory appeal. Id. at 115.
A motions panel of the court of appeals denied the President’s mandamus petition without prejudice in July 2019. See id. at 115-16. Recognizing that “the standing question arises at the intersection of precedent,” id. at 116 (citing Coleman and Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019)), the court of appeals concluded that the President failed to demonstrate his right to dismissal of Petitioners’ complaint. However, the court of appeals also concluded that the district court’s orders met the criteria for certification under 28 U.S.C. § 1292(b). Id. at 115. It therefore remanded the case for reconsideration of the President’s motion to certify those orders. Id. at 117. On remand, the district court certified its orders for interlocutory appeal and stayed its proceedings. Id. at 118. The court of appeals then granted the interlocutory appeal. Id. at 125.

16
In February 2020, the court of appeals reversed the district court and remanded with instructions to dismiss the complaint. Id. at 13. “This case is really no different from Raines,” the court wrote, because Petitioners’ claim “is based entirely on the loss of political power.” Id. at 9. The court of appeals did not explain why depriving Petitioners of the opportunity to vote on specific transactions with foreign governments is equivalent to an “abstract dilution” of congressional power. Raines, 521 U.S. at 826.
Instead, the court of appeals stated that Petitioners lack standing because they do “not constitute a majority of either body,” Pet. App. 11; id. (“the Members’ inability to act determinatively is important”), and that “only an institution can assert an institutional injury provided the injury is not ‘wholly abstract and widely dispersed.’” Id. at 10-11 (quoting Raines, 521 U.S. at 829). The court of appeals did not explain how a claim brought by an institution could be “widely dispersed,” a description that makes sense only when applied, as it was in Raines, to claims brought by the individual members of an institution. The incongruity of the court of appeals’ statement reveals its basic misunderstanding of Raines, which denied standing to individual members of Congress because the specific claims they brought were both “wholly abstract and widely dispersed,” Raines, 521 U.S. at 829, not because “only an institution can assert an institutional injury,” Pet. App. 10. The court of appeals discussed Coleman in a two-sentence footnote. Id. at 11 n.3.
According to the court of appeals, its holding rested largely on this Court’s “recent summary reading of Raines” in Bethune-Hill. Id. at 10. Because Petitioners are claiming an “institutional” injury rather than a personal or private injury, the court wrote, they “concededly seek to do precisely what Bethune-Hill

17
forbids”—that is, “‘assert interests belonging to the legislature as a whole.’” Id. (quoting Bethune-Hill, 39 S. Ct. at 1953-54). Apparently, the court of appeals understood the term “institutional injury” as meaning injury to the legislature as a whole. But see Raines, 521 U.S. at 820-21 & n.4 (explaining that for individual legislators like those in Coleman, an “institutional injury” means an “injury to their institutional power as legislators”).
The court of appeals also stated in a footnote, without elaboration, that “[o]ur own precedent confirms that the Members lack standing.” Pet. App. 12 n.5 (citing Chenoweth v. Clinton, 181 F.3d 112, and Campbell v. Clinton, 203 F.3d 19).
REASONS FOR GRANTING THE PETITION
I. The Decision Below Departs from This Court’s Precedent by Eliminating Standing for Individual Legislators When Their Votes Are Completely Nullified.
This Court’s decisions on legislative standing have established three propositions. First, individual legislators have standing when their votes are completely nullified. Coleman, 307 U.S. at 438. Second, a legislative body has standing when it is deprived of one of its powers. Ariz. State Legislature, 135 S. Ct. at 2665. Third, notwithstanding those first two propositions, individual legislators and the subcomponents of a legislature lack standing to assert interests that are possessed only by the legislature as a whole. Raines, 521 U.S. at 829-30; Bethune-Hill, 139 S. Ct. at 1950.
Under these principles, Petitioners have standing to sue. The decision below held to the contrary only by departing from these principles and eliminating complete vote nullification as a basis for standing. Reasoning that “only an institution can assert an

18
institutional injury,” Pet. App. 10, the decision below essentially imposed a categorical bar on individual legislators seeking judicial relief from “injury to their institutional power as legislators.” Raines, 521 U.S. at 820 n.4. This Court has never taken that step. To the contrary, it carefully preserved that avenue for lawmakers in Raines. And Bethune-Hill—which did not even involve alleged vote nullification or individual legislators—did not foreclose it either. The court of appeals erred in concluding otherwise. By foreclosing standing for individual legislators, the decision below eliminates an important structural safety valve that this Court has been careful to preserve.
A. Every time President Trump accepts a foreign emolument without Congress’s prior consent, he is denying Petitioners their right to cast an effective vote on whether he may accept that emolument. Although this Court has narrowed the circumstances in which individual legislators may sue over harms to their official powers, there is one type of “institutional injury” that individual legislators can vindicate in court: complete vote nullification. Raines, 521 U.S. at 823 (quoting Coleman, 307 U.S. at 438).
This Court first recognized vote nullification as a cognizable injury in Coleman v. Miller, 307 U.S. 433. In Coleman, Kansas officials treated a federal constitutional amendment as having been ratified by the state senate even though, according to the plaintiffs, the senate had not approved the amendment. This Court concluded that those actions inflicted an “institutional injury” on the plaintiffs—legislators who had voted against the amendment—because their votes were “deprived of all validity,” and that the legislators therefore had standing to sue. See Raines, 521 U.S. at 821-22. This Court has repeatedly reaffirmed Coleman. See, e.g., Ariz. State Legislature, 135 S. Ct. at

19
2665 & n.13 (confirming “the precedential weight of Coleman” and relying on its vote-nullification rationale); Raines, 521 U.S. at 826 (reaffirming Coleman); cf. Bethune-Hill, 139 S. Ct. at 1954 (distinguishing Coleman).
As this Court has made clear, vote nullification occurs both when a past vote is unlawfully disregarded and when the right to cast an effective vote is unlawfully denied. In Raines, for example, in holding that the plaintiffs had not experienced vote nullification and therefore lacked standing, this Court emphasized not only that the plaintiffs’ past votes were “given full effect” during the passage of the Line Item Veto Act, but also that the Act would not “nullify their votes in the future.” Raines, 521 U.S. at 824. In Arizona State Legislature, this Court confirmed what Raines suggested: unlawful vote denial is a form of vote nullification. Arizona held that a legislature could challenge a ballot measure that took away its redistricting power because the measure “would ‘completely nullif[y]’ any vote by the Legislature, now or ‘in the future,’ purporting to adopt a redistricting plan.” 135 S. Ct. at 2665 (quoting Raines, 521 U.S. at 823-24). Finally, in Bethune-Hill, as in Raines, this Court denied standing in part because the purported injury did not deprive the plaintiff of any future voting power. Bethune-Hill, 139 S. Ct. at 1954.
While suits by federal legislators like Petitioners raise “separation-of-powers concerns,” Raines, 521 U.S. at 824 n.8; accord Ariz. State Legislature, 135 S. Ct. at 2665 n.12, this Court has never held that those concerns foreclose members of Congress from seeking judicial relief. Indeed, this Court expressly declined to dismiss the plaintiffs’ claims in Raines on that basis. See 521 U.S. at 824 n.8. The D.C. Circuit has long addressed these separation-of-powers concerns by

20
mandating dismissal of any suit brought by members of Congress when Congress as a whole has the power to remedy the members’ grievance. See Chenoweth, 181 F.3d at 116. This Court endorsed that principle in Raines. See Campbell, 203 F.3d at 24 (“Raines[] focus[ed] on the political self-help available to congressmen. . . . [T]he Court denied [the plaintiffs] standing as congressmen because they possessed political tools with which to remedy their purported injury.”).
President Trump’s denial of Petitioners’ right to vote under the Foreign Emoluments Clause constitutes complete vote nullification that Petitioners have standing to challenge. As the district court recognized, each time the President accepts financial rewards from foreign states “as though Congress has provided its consent,” he is “‘treating a vote that did not pass as if it had.’” Pet. App. 41-42 (quoting Campbell, 203 F.3d at 22). And because President Trump is violating the Clause through his private businesses, rather than through government agencies over which Congress could exert control, Petitioners “have no adequate legislative remedies.” Id.
B. In reversing the district court’s decision, the court of appeals misapplied Raines and overlooked the careful limits of its holding.
In Raines, this Court reversed a lower court’s ruling that members of Congress could challenge the Line Item Veto Act because it allegedly “dilute[d]” their power and “affect[ed]” their duties by changing “the dynamic of lawmaking.” Byrd v. Raines, 956 F. Supp. 25, 30-31 (D.D.C. 1997); see Raines, 521 U.S. at 825 (quoting plaintiffs’ argument that “the ‘meaning’ and ‘integrity’ of their vote ha[d] changed”). This Court rejected the “drastic extension of Coleman” that would be necessary to recognize standing based on that claim. Raines, 521 U.S. at 826. When the Act was

21
passed, the Court explained, the plaintiffs’ votes “were given full effect. They simply lost that vote.” Id. at 824. Nor would the Act “nullify their votes in the future.” Id. Because no past votes were disregarded and no future votes denied, Coleman provided “little meaningful precedent” for the plaintiffs’ argument: “There is a vast difference between the level of vote nullification at issue in Coleman and the abstract dilution of institutional legislative power that is alleged here.” Id. at 824, 826. While Congress may have lost clout, no rights of individual lawmakers were impaired. “None of the plaintiffs, therefore, could tenably claim a ‘personal stake’ in the suit.” Ariz. State Legislature, 135 S. Ct. at 2664 (quoting Raines, 521 U.S. at 830).
Here, by contrast, Petitioners are being deprived of specific votes to which the Constitution entitles them. As in Coleman, they seek to maintain the effectiveness of their own individual votes—not to challenge an “abstract dilution” of Congress’s power, as in Raines, 521 U.S. at 826. Congress cannot give the “Consent” that the Foreign Emoluments Clause requires, U.S. Const. art. I, § 9, cl. 8, without first having the opportunity to vote on the matter in both of its chambers. And the Constitution guarantees each Senator and Representative the right to vote on every matter that comes before those bodies. See id. art. I, § 3, cl. 1; id. art. I, § 5, cl. 3. Thus, under the Constitution, Petitioners are entitled to vote on whether to consent to the President’s acceptance of specific foreign emoluments before he accepts them. Petitioners, therefore, are not attempting to vindicate the interests of Congress any more than the Coleman plaintiffs sought to vindicate those of the Kansas legislature. Rather than trying to redress an injury to the body in which they serve, Petitioners are trying to redress an injury to their own individual voting rights.

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The decision below did not explain why Raines “plainly applies here” despite these differences. Pet. App. 10. Its only attempt at doing so was to observe that Petitioners are not being “singled out.” Id. at 9. But that is no reason for rejecting a claim of institutional injury under Raines. In the passage of Raines to which the court of appeals referred, this Court was explaining why the plaintiffs’ alleged injury did not fit the mold of Powell v. McCormack, where a Congressman was “singled out for specially unfavorable treatment as opposed to other Members” concerning a “private right.” Raines, 521 U.S. at 821 (citing Powell, 395 U.S. at 496, 512-14). When this Court later addressed “institutional injury,” it distinguished the plaintiffs’ claims from the claims in Coleman on the entirely different grounds described above, without suggesting that vote nullification requires a legislator to be singled out. See id. at 821-26.
At bottom, the court below simply misunderstood the distinction Raines drew between “institutional injury,” on the one hand, and “personal injury,” on the other. Under Raines, “personal injuries” are based on the deprivation of legislators’ “private rights,” as in Powell (involving a Congressman’s salary), while “institutional” injuries are based on harm to their “institutional power as legislators.” Raines, 521 U.S. at 820-21 & n.4. Contrary to Raines, the court below assumed that vindicating an “institutional injury” necessarily means asserting the rights of a legislative body. Pet. App. 10 (stating that Plaintiffs “concededly” seek to “assert interests belonging to the legislature as a whole” simply because they acknowledge they are not vindicating a “private right” (quotation marks omitted)). But that is wrong: “The one case in which [this Court] ha[s] upheld standing for legislators . . . claiming an institutional injury is Coleman,” Raines, 521

23
U.S. at 821, and the Coleman plaintiffs were not asserting the rights of their legislature. Instead, as individual members who had voted against a legislative measure, they sought to “maintain[] the effectiveness of their votes.” Coleman, 307 U.S. at 438.
Claims of institutional injury, therefore, can be brought to assert the rights of legislative bodies or of individual legislators. When brought by individuals, some injuries are cognizable (as in Coleman) while others are not (as in Raines), just as when claims are brought by legislative bodies, some injuries are cognizable (as in Arizona State Legislature), while others are not (as in Bethune-Hill).
Remarkably, the entire discussion of Coleman in the decision below is a short footnote, which merely asserts that Coleman is “inapposite” because it “‘stands (at most) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.’” Pet. App. 11 n.3 (quoting Raines, 521 U.S. at 823 (emphasis added and citation omitted by the court of appeals)).
As Petitioners explained below, however, that statement addresses scenarios like in Coleman, where legislators claim that votes they have already cast were unlawfully disregarded. After all, when legislators assert that the result of a prior vote was overridden, the only basis for claiming nullification is that the majority’s will was thwarted, and so a showing of majority support is essential. But when legislators are denied their right to vote entirely, the denial itself deprives their votes “of all validity,” Raines, 521 U.S. at 822, regardless of what the result might have been. For instance, if the defendants in Coleman had simply

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deemed the constitutional amendment ratified without submitting it for a vote, that would have injured the plaintiffs no less than allowing them to go through the motions of voting but then ignoring the outcome. In both situations, the harm is the same: legislators are denied the right to cast a vote that is given legal effect.8
Indeed, this Court in Raines expressly contemplated that, in a proper case, vote deprivation affecting less than a majority of members can be a cognizable injury. See id. at 824 n.7 (declining to address scenarios “in which first-term Members were not allowed to vote on appropriations bills, or in which every Member was disqualified . . . from voting on major federal projects in his or her own district” (quotation marks omitted)). If Raines had confined institutional injuries to legislative bodies, or to members who make up a majority of their legislative body, it would not have needed to defer questions about these hypotheticals in which smaller numbers of legislators are deprived of their votes. This Court’s decision not to resolve such questions is incompatible with the holding below— that Raines forecloses standing for anything less than a majority of members. Raines rejected “a drastic extension of Coleman,” id. at 826 (emphasis added), not any extension of its rationale.
The decision below addressed none of this. Instead, it cast doubt on whether Coleman “survives”
8 Importantly, this Court’s use of the caveat “at most” in describing what Coleman stands for, Raines, 521 U.S. at 823, was not meant to suggest that vote nullification is limited to Coleman’s precise situation. Rather, as explained in the accompanying footnote, this caveat simply recognizes the possibility that Coleman might not apply to federal legislators. See Raines, 521 U.S. at 824 n.8.

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Raines, Pet. App. 11 n.3, even though this Court expressly reaffirmed “the precedential weight of Coleman” five years ago, Ariz. State Legislature, 135 S. Ct. at 2665 n.13, and took pains to distinguish Coleman just last year, see Bethune-Hill, 139 S. Ct. at 1954. See also Ariz. State Legislature, 135 S. Ct. at 2665 n.13 (chiding the dissent’s effort “to wish away Coleman”).
C. In support of its overbroad reading of Raines, the court below relied almost entirely on one sentence in Bethune-Hill, a case that did not involve individual legislators or alleged vote nullification: “Just as individual members lack standing to assert the institutional interests of a legislature, . . . a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.” Bethune-Hill, 139 S. Ct. at 1953-54; see Pet. App. 10 (quoting this sentence). According to the court below, this “summary reading of Raines” confirms that individual legislators cannot sue over the complete nullification of their votes. Id.
As this Court’s decisions make clear, however, legislators challenging vote nullification are not asserting interests belonging to the legislature as a whole, but rather are seeking to maintain the effectiveness of their own individual votes. Here, Petitioners allege that President Trump has completely nullified their individual votes—not that he has inflicted a cognizable injury on the House, the Senate, or Congress as a whole. See supra.
Critically, too, this Court emphasized in BethuneHill that vote nullification was not at issue. The Virginia House of Delegates had been permitted to play its full role in the passage of the legislation in question. “Unlike Coleman,” therefore, the Court reasoned that “this case does not concern the results of a legislative chamber’s poll or the validity of any counted or

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uncounted vote. At issue here, instead, is the constitutionality of a concededly enacted redistricting plan.” Id. at 1954. And just as no vote was disregarded in the past, none would be impaired in the future, because “the challenged order does not alter the General Assembly’s dominant initiating and ongoing role in redistricting.” Id.
Instead, the House of Delegates sought to vindicate an institutional interest never before recognized: a legislative chamber’s ongoing interest in the legal status of a measure it helped pass. But this Court has “never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage.” Bethune-Hill, 139 S. Ct. at 1953. There was simply “no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment.” Id. By contrast, this Court has held that legislators are injured by the complete nullification of their votes (Coleman), and that nullification can include the unlawful denial of an effective future vote (Arizona State Legislature).9
The House of Delegates, in short, sought to assert an interest belonging to the larger body of which it was a part, without showing any harm to its own individual
9 Consistent with Bethune-Hill, Petitioners have acknowledged that once members of Congress fulfill their role in enacting legislation, they have no special interest in its ongoing enforcement. See Hollingsworth v. Perry, 570 U.S. 693, 706-07 (2013) (distinguishing the “‘unique,’ ‘special,’ and ‘distinct’ role” that a legislative participant enjoys during “the process of enacting the law” from the lack of any special role after the law is “duly enacted” (quotation marks omitted)); Bowsher v. Synar, 478 U.S. 714, 733 (1986) (same).

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prerogatives. This was the same type of “mismatch” that existed in Raines, where members of Congress alleged that the Line Item Veto Act “alter[ed] the constitutional balance of powers between the Legislative and Executive Branches,” 521 U.S. at 816, without showing any harm to their own individual prerogatives. See supra. The similarity of this “mismatch” prompted the Court to liken the two cases: “Just as individual members lack standing to assert the institutional interests of a legislature, a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.” Id. at 1953-54 (citing Raines, 521 U.S. at 829).
The decision below ignored the context of this sentence, quoting it in isolation for the proposition that legislators who make up less than a majority of their body may not sue over the complete nullification of their votes. Pet. App. 10-11. Yet the decision below offered no justification, and cited no precedent, for the premise that forms the crux of its conclusion: that challenging the nullification of a lawmaker’s vote means “assert[ing] the institutional interests of a legislature.” Id. at 10. Based on that unsupported assumption, which is nowhere to be found in this Court’s decisions, the court below ordered the dismissal of Petitioners’ claims.
II. The Issues at Stake Are Exceptionally
Important.
The significant ramifications of the decision below make this Court’s review imperative. By essentially imposing a categorical bar on individual members of Congress seeking judicial relief for complete vote nullification by the executive, even when Congress as a whole is powerless to remedy the injury through legislative action, the decision below eliminates an important safety valve for maintaining our constitutional

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structure—one that this Court has carefully preserved in its prior decisions. As a result of the decision below, the Foreign Emoluments Clause—a critical safeguard against foreign corruption of America’s leaders—no longer functions as the Framers prescribed.10
A. Even as this Court narrowed the availability of standing for individual members of Congress in Raines, it preserved the possibility that members could seek judicial relief if their own votes were completely nullified. See Chenoweth, 181 F.3d at 117 (explaining that under Raines, members of Congress could have standing where they can “plausibly describe the President’s action as a complete nullification of their votes”); Campbell, 203 F.3d at 22 (noting that in Raines, this Court “emphasized that the congressmen were not asserting that their votes had been ‘completely nullified’” (quoting Raines, 521 U.S. at 824)).
The decision below, however, prevents individual members of Congress from enforcing any of their institutional prerogatives in court, even when the executive branch has completely nullified their votes and Congress as a whole can provide no adequate remedy. The decision thus closes the door on any suits by
10 Although two other pending suits involve the President’s unlawful acceptance of emoluments, those suits relate exclusively to his D.C. and New York hotels and restaurants. They cannot lead to judicial orders covering the President’s other hotels and resorts, payments to his skyscrapers (the source of “[t]he real money in the Trump empire,” Alexander & Drange, supra), his acceptance of foreign trademarks, or the regulatory favors conferred on his business ventures abroad. In other words, with respect to the vast majority of President Trump’s alleged foreign emoluments, the decision below “forecloses the[m] . . . from constitutional challenge.” Raines, 521 U.S. at 829. But see id. at 829-30 (declining to decide whether Raines’s holding “would be different” if no one else could challenge the Line Item Veto Act).

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individual legislators seeking to uphold the Constitution’s procedural requirements. “If [this] Court had meant to do away with legislative standing” in Raines, however, “it would have said so and it would have given reasons for taking that step.” Campbell, 203 F.3d at 32 (Randolph, J., concurring in the judgment). Instead, this Court meticulously avoided taking that step.
So did the D.C. Circuit—until the decision below. After Raines, the Circuit twice addressed suits by individual members of Congress alleging institutional injuries, and in neither case did the Circuit adopt the categorical bar on standing adopted by the decision below. Construing Raines and Coleman, the Circuit interpreted vote “nullification” to mean “treating a vote that did not pass as if it had, or vice versa,” in the “unusual situation” where there is no “legislative remedy.” Campbell, 203 F.3d at 22-23. Under that restrictive standard, members of Congress can have standing only where Congress as a whole cannot redress the interference with their votes. See id. at 23 (dismissing suit for failure to make that showing); Chenoweth, 181 F.3d at 116 (similar).
Before the decision below, therefore, standing for individual members was already sharply circumscribed: even if members could show that their votes were unlawfully denied or disregarded, they also had to show that Congress could not adequately solve the problem itself. See, e.g., Campbell, 203 F.3d at 23 (rejecting suit over military strikes because “Congress has a broad range of legislative authority it can use to stop a President’s war making”); Kucinich v. Bush, 236 F. Supp. 2d 1, 10 (D.D.C. 2002) (rejecting suit because Congress could address the alleged problem using its appropriations power); Kucinich v. Obama, 821 F. Supp. 2d 110, 119 (D.D.C. 2011) (same).

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As narrow as that standard was, it preserved a critical caveat: in an extreme case—where unlawful executive action completely negates the votes of members of Congress, and where no political remedy is adequate—legislators could turn to the courts to vindicate their institutional prerogatives and maintain the procedural requirements on which our constitutional structure rests. The decision below eliminated that possibility.
B. The circumstances of this case illustrate the harms of eliminating that safety valve. The Foreign Emoluments Clause is one of the few constitutional provisions that impose a specific procedural requirement (obtain “the Consent of the Congress”) before federal officials may take a specific action (accept “any” emolument from “any . . . foreign State”). U.S. Const. art. I, § 9, cl. 8; see Pet. App. 41 n.8 (identifying the Article II requirement of Senate consent for appointments and treaties as “[t]he only similar provision”). Among these provisions, only the Foreign Emoluments Clause employs a congressional “consent” requirement to regulate officials’ private behavior. Because President Trump is violating the Clause through his private businesses, Congress cannot block his actions through its appropriations power—normally the “ultimate weapon of enforcement available to the Congress.” United States v. Richardson, 418 U.S. 166, 178 n.11 (1974). Without that tool or any other effective means of forcing President Trump to conform his conduct to the Clause’s requirements, Petitioners have no adequate legislative remedy for the President’s denial of their voting rights. See Pet. App. 50-54.
As a result, for more than three years, the nation’s highest officeholder has been making critical foreign policy decisions under a cloud of potentially divided loyalty caused by his enrichment from foreign states—

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the scope of which remains unknown. See supra at 8-9. That is precisely what the Constitution’s Framers tried to prevent. The Framers empowered presidents to make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system,” Nixon v. Fitzgerald, 457 U.S. 731, 752 (1982), but recognizing the existential threat of foreign corruption, they adopted the Foreign Emoluments Clause to shield presidents and other federal officials from the possibility of undue foreign-government influence.
By accepting financial rewards from foreign states in secret, President Trump is defying the Framers’ design and depriving the American people of assurance that their highest elected official is pursuing their interests with undivided loyalty. Neither the President nor the Justice Department has explained why the Foreign Emoluments Clause would prevent a federal employee from accepting $150 to review a Ph.D. thesis, see 18 Op. O.L.C. at 17 (citing Memorandum for H. Gerald Staub, Office of Chief Counsel, NASA, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal Counsel, Re: Emoluments Clause Questions Raised by NASA Scientist’s Proposed Consulting Arrangement with the University of New South Wales (May 23, 1986)), but would allow the President to accept millions of dollars through his business empire, in secret, from an unknown range of foreign states.
The Framers designed the Clause as a default prohibition under which Congress’s failure to act functions as a denial of consent to accept foreign emoluments. The decision below, however, requires the House or Senate, acting as a legislative body, to join any legal challenge to a president’s alleged acceptance of foreign emoluments—without knowing what those emoluments are or which foreign states may have

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provided them. The result, in effect, is to rewrite the Foreign Emoluments Clause, inverting its structure and converting legislative roadblocks into an ally of foreign corruption instead of an enemy.
For the Foreign Emoluments Clause to retain its value as a prophylactic safeguard against even the possibility of foreign corruption—and to ensure that when our leaders are making sensitive foreign policy decisions, they are considering only what they believe to be the nation’s best interest—members of Congress must be able to vindicate their right to vote on whether to approve specific emoluments before the President accepts them, as the Constitution requires. Preserving that structure is more critical to the nation’s welfare, not less, during times when fewer than a majority of Congress’s members are willing to challenge the President’s actions in court. As illustrated by President Trump’s increasingly defiant disregard of the Clause, the decision below is a recipe for impunity and for foreign interference with our democratic system.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ELIZABETH B. WYDRA BRIANNE J. GOROD* BRIAN R. FRAZELLE CONSTITUTIONAL
ACCOUNTABILITY CENTER 1200 18th Street NW, Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org

Counsel for Petitioners

July 6, 2020

* Counsel of Record