December 15, 2020

A non-profit group on Monday urged the U.S. Supreme Court to deny President Donald Trump's petition to review a Second Circuit decision that kept alive claims he violated the U.S. Constitution's emoluments clause, stating the case will soon be moot when President-elect Joe Biden is sworn into office.

Non-profit watchdog Citizens for Responsibility and Ethics in Washington told the high court the case was "on the brink of becoming moot" since the other plaintiffs in the matter — including restaurateur and hotelier Eric Goode — have only sought relief for Trump's alleged luring of dignitaries to his branded establishments in his official capacity as president.

Since Trump will no longer be president on Jan. 20, 2021, 12 days before the Supreme Court is scheduled to consider his petition for review, CREW and the other plaintiff said there was "no further relief that any court can grant" on their claims and "no basis to further litigate the question the government asks this court to consider."

"Because the plaintiffs seek only prospective declaratory and injunctive relief to stop President Trump, while he is in office, from receiving such payments from businesses in which he has an ownership interest, the inauguration of President-elect Biden — who has no such ownership interests — will leave nothing for this court to do," the filing read. "That alone justifies denial of the petition."

Additionally, the filing claimed Trump's attorneys were wrong to claim there was any circuit split amid the Second Circuit's ruling. The decisions the government pointed to in the First, D.C., and Federal circuits did not run contrary to the Second Circuit, the filing claimed, but rather affirmed that plaintiffs only needed to "only show 'a sufficient likelihood'" of injury.

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CREW and the other plaintiffs first filed their lawsuit against Trump in early 2017, just days after he took office, claiming his real estate and business holdings violated the emoluments clause — a provision in Article I of the Constitution that bars U.S. officials from receiving gifts, payments or other personal benefits from foreign governments without congressional approval.

But after nearly a year of fighting over whether Trump was connected closely enough to his businesses, particularly a Manhattan hotel on which he was taking a buyout, a New York federal court tossed the case, finding the plaintiffs hadn't established standing.

The case was appealed up to the Second Circuit. There, Trump urged the court in May 2018 to affirm the New York federal court's dismissal, calling the emoluments case a "manufactured" suit and contending they failed to support their claims that Trump's hotels and restaurants hurt them competitively by drawing away the business of government patrons.

However, the Second Circuit vacated and remanded the district court's decision in 2019 and denied the president's petition for rehearing en banc earlier this year. The government appealed that decision to the Supreme Court in September.

CREW and the other plaintiffs are represented in-house by Noah Bookbinder, Stuart C. Mcphail, Adam J. Rappaport and Laura C. Beckerman, and by Deepak Gupta and Gregory A. Beck of Gupta Wessler PLLC, Joshua Matz, Raymond P. Tolentino and Molly Webster of Kaplan Hecker & Fink LLP, Joseph M. Sellers and Daniel A. Small of Cohen Milstein Sellers & Toll PLLC, and Laurence H. Tribe and Carl M. Loeb of Harvard Law School.

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