President Donald Trump can’t be sued for violating the emoluments clause, an assistant U.S. attorney said Tuesday, urging a federal judge to throw out a federal lawsuit filed by a Broward County lawyer.
Citing a 151-year-old U.S. Supreme Court case, Assistant U.S. Attorney Carlos Raurell claims the judiciary has no ability to rein in the executive powers of the president.
“The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department,” he wrote, quoting the Supreme Court’s 1866 decision in Mississippi v. Johnson.
In a lawsuit assigned to U.S. District Judge Robin Rosenberg in July, construction lawyer Patrick Goggins claimed Trump is violating the U.S. Constitution because his far-flung Trump Organization is making money by renting rooms in its hotels or other buildings to federal agencies.
The president’s compensation “shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them,” according to Article 2 of the Constitution.
“I would argue that payment from any state or federal governmental entity to the Trump Organization is prohibited under Article 2,” Goggins, of Hollywood, said in filing his lawsuit.
But Raurell’s response said Goggins is ignoring a series of court rulings that prohibit the judiciary from making such determinations.
Pointing to a 1992 U.S. Supreme Court decision, Raurell said Justice Antonin Scalia “reasoned that just as the President is absolutely immune from official capacity damages suits, so is he immune from suits for declaratory judgments against him in his official capacity.”
Further, Raurell wrote, Goggins failed to meet a basic legal test. To file a lawsuit, he has to prove he has been uniquely harmed. Simply being a concerned U.S. citizen isn’t enough, he said.
“It has long been held that one’s status as a taxpayer is generally not enough to establish standing to challenge an action taken by the Federal Government,’” he wrote, quoting a 2007 court decision.
Goggins has noted that his lawsuit is different from one filed in federal court in Washington, D.C. in January. In that lawsuit, the watchdog group Citizens for Responsibility and Ethics claims Trump is violating Article 1, a clause that bars federal officeholders from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state.”
Filed by top ethics lawyers from the administrations of presidents Barack Obama and George W. Bush, that lawsuit challenges Trump’s ability to make money from foreign visitors who stay at his hotels, including the Trump International Hotel in Washington, D.C. which has become a favorite spot of visiting foreign dignitaries.