November 11, 2017
A Washington-based watchdog group that frequently litigates against President Donald Trump may have exaggerated key claims in a high-profile lawsuit alleging that the president is unconstitutionally leveraging the power of his office for profiteering.
National Review Online reports that Citizens for Responsibility and Ethics in Washington (CREW) may have misled a federal court in New York with respect to the professional background of three plaintiffs in their lawsuit, CREW vs. Trump.
The plaintiffs’ professions are an essential aspect to the disposition of the case. Before the court rules on the merits of their suit — which alleges that Trump’s commercial entities profit from business with foreign governments, in violation of the Constitution’s emoluments clause — it must first establish that the plaintiffs have standing. In order to bring a lawsuit, a plaintiff must first establish that the defendant has inflicted a concrete, tangible, and particularized injury against them.
Here the plaintiffs claim that their economic livelihood has been adversely affected by their inability to compete with Trump’s businesses following his election to the presidency. The plaintiffs claim that they are event planners, hoteliers, and restaurant owners who have lost business in recent months, as prospective costumers flock to Trump properties to curry favor with the administration or secure greater exposure.
It appears, however, that three plaintiffs may have overstated the extent of their connection to the hospitality industry, and thus their claim of standing.
A CREW spokesperson did not return The Daily Caller News Foundation’s inquiries in time for publication.
The alleged misrepresentations were first noted by law Professors Josh Blackman and Seth Barrett Tillman on the Washington Post’s Volokh Conspiracy blog. Blackman and Tillman have filed amicus (or “friend-of-the-court”) briefs in the litigation, arguing that the president is exempt from the Constitution’s foreign emoluments clause.
The three plaintiffs in question are Jill Phaneuf, an event planner in Washington, Eric Goode, a hotel owner in New York, and ROC, a nonprofit which owns a restaurant in New York. Blackman and Tillman noted in their Volokh post that neither Goode nor ROC are properly hotel or restaurant owners. Instead, publicly available records appear to show that they are shareholders or co-owners with other parties. As the pair note in their post, a shareholder or co-owner cannot bring a lawsuit in their company’s name.
“Under well-established case law, individual members of commercial entities, such as a limited liability company, generally cannot bring suit on behalf of the organization, unless they are duly authorized to do so,” they write.
It is not clear that either Goode or ROC have been authorized to bring a suit by their respective commercial entities, and CREW’s lawsuit is silent on this important question.
In turn, NRO reported that the third plaintiff, Phaneuf, appears only tangentially connected to Washington’s competitive event planning industry. CREW’s lawsuit claims she makes her living organizing diplomatic soirees in Washington for foreign governments, and has lost business as foreign leaders elect to forgo her services and hold functions at the Trump International Hotel. Phaneuf, however, told NRO that she is in fact a full-time employee of a private equity firm, and has only organized a handful of social gatherings, none of which were for foreign clients.
All told, these new revelations may seriously undermine plaintiffs’ claims that they have standing to sue the president. They also raise questions as to how carefully CREW and its lawyers vetted their fellow plaintiffs, and if they intentionally made misrepresentations to the court.
The new standing questions are not the first time Blackman and Tillman have sparred with CREW and its supporters in this litigation on a matter of integrity. The scholars were vindicated after CREW and its amici claimed they had misunderstood and misrepresented an historical document relevant to their argument, as Adam Liptak of The New York Times summarizes in a recent column.