Ethics Suit Against President Trump: Will It Pass Standing?

On January 23, 2017, constitutional scholars joined a Washington D.C. based ethics non-profit called Citizens for Responsibility and Ethics in Washington (CREW), in a lawsuit against Donald Trump in his capacity as President of the United States. The full complaint can be read here. 

The suit was joined by Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University Law School, Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine, and Richard W. Painter, Vice Chair Board of Directors, CREW and former ethics counsel to President George W. Bush. 

This suit raises interesting questions of standing, injury and remedy. Our Supreme Court has consistently held that in order for a lawsuit to be successful a party must have standing to sue. Standing is one of the most basic principles in our legal system and its requirements are well settled. In Allen v. Wright, 468 U.S. 737 (1984), the United States Supreme Court explained the three basic constitutional requirements for proper standing; 1) that the injury must be fairly distinct and palpable, 2) that the injury be traceable to the defendant’s actions, and that 3) a favorable decision by the court will likely redress plaintiff’s injury. 

Simply put, standing refers to whether the party suing is the right person to bring suit. The injured party, so to speak. The Supreme Court has rejected claims of a more general nature where people brought lawsuits against the government under the premise of being taxpayers who are injured in the aggregate. These types of injuries are to indistinct and are essentially untraceable.

Related closely to standing is the issue of injury. Under our law, a party bringing a suit must also have a distinct and palpable injury. Injury doesn't necessarily refer to a bodily injury like a broken foot, rather, it refers to some kind of damage, be it economic, physical, emotional, or nominal. This injury must be directly traceable to the defendant's actions and it must be somewhat quantifiable. To say someone did wrong but nobody was harmed by it is insufficient to survive judicial scrutiny. There must be a harm. 

To be successful in the suit against President Trump, the plaintiffs must pass a few hurdles – they must show that their case is justiciable (passes the legal requirements to exert the court's authority). Specifically, they have to convince the court that they are the proper party to bring this case, in that they have been harmed, the harm is sufficiently traceable to President Trump’s actions, and that a favorable ruling by the court will cure that injury. 

It will be interesting to see whether CREW has pleaded the proper injuries and whether they can survive this initial test. Stay tuned.