I won’t regale you with the history of the Emoluments Clauses litigation. (You can see all the briefs that Seth Barrett Tillman and I filed here.) Needless to say, there were extensive debates about the meaning of the Domestic Emoluments Clause and the Foreign Emoluments Clause. And, because the litigation stretched beyond Trump’s four-year term, the Supreme Court was never called upon to decide any of these issues. To the contrary, the Supreme Court vacated the judgment of the Fourth Circuit. And, in turn, the Fourth Circuit vacated the leading district court decision that interpreted the Emoluments Clause. The D.C. Circuit never resolved the merits of the Foreign Emoluments Clause, because a panel found that Senator Blumenthal and other members of the Congress lacked standing. And that case did not raise any claims based on the Domestic Emoluments Clause.
Fast-forward to July 8, 2020. Two judges on the D.C. Circuit-Chief Judge Srinivasan and Judge Rogers–decided Trump v. Mazars. (The third member of the panel, then-Circuit Judge Ketanji Brown Jackson, heard oral argument in December 2021, but did not participate in the case.) This case may sound familiar. After the Supreme Court decided Trump v. Mazars in June 2020, the case went back to the District Court, and that dispute was appealed to the D.C. Circuit. Here, the panel allowed the Committee to “subpoena certain of President Trump’s financial records in furtherance of the Committee’s enumerated legislative purposes.” But other requests were deemed too broad.
In passing on the Committee’s “legislative purpose,” Srinivasan’s opinion made two claims about the Foreign and Domestic Emoluments Clause. These statements are problematic.
First, Srinivasan writes, without any citation but the Constitution:
The Domestic Emoluments Clause applies solely to the President and prohibits the acceptance of gifts or other payments from state governments or federal agencies. U.S. Const. art. I, § 1, cl. 7.
There were four years of litigation about whether the phrase “emolument” in the Domestic Emoluments Clause equates to “payments from state governments or federal agencies.” Srnivasan states that conclusion without any authority. And here, he cannot rely on circuit precedent, as the Blumenthal litigation did not even involve the Domestic Emoluments Clause. He also did not cite the District Court opinion from Maryland, which has since been vacated.
Second, Srinivasan writes, without any citation but the Constitution:
The Constitution’s Foreign Emoluments Clause bars federal officials (including the President) from accepting gifts or other payments from foreign governments. U.S. Const. art. I, § 9, cl. 8.
Again, there was extensive litigation over the meaning of the phrase “emolument” in the Foreign Emoluments Clause. But Srinivasan simply adopts the same meaning he ascribes to the Domestic Emoluments Clause. He does not even acknowledge that the language in the Foreign Emoluments Clause may be broader, as it refers to “Emolument . . . of any kind whatever.” (Conversely, he does not acknowledge that the meaning of “Emolument” in the Domestic Emoluments Clause may be narrower.) For that matter, Srinivasan doesn’t even quote the Constitution. Finally, the issue of whether the President is subject to the Foreign Emoluments Clause was contested, and discussed in briefs and opinions. There is ample authority to cite on both sides. But Srinivasan simply accepts this proposition, without acknowledging the debate.
From these two postulates, Srinivasan concludes:
We thus conclude that the Committee has explained in adequate detail how President Trump’s papers will inform its legislative aims under the emoluments track.
If and when this case goes upstairs, the Supreme Court will have to pass on these difficult questions about the Emoluments Clause. Hopefully, Justice Jackson can give these issues more attention than did Chief Judge Srinivasan. Ilya may have been wrong.
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