Deepak Gupta
@deepakguptalaw
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Founder @GuptaWessler . Lecturer @Harvard_Law . Supreme Court & appellate advocate for plaintiffs and the public interest. Former @CFPB , @Public_Citizen .
Washington, DC
Joined June 2012
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Last Seen Profiles
There's understandably been a lot of talk today about the 25th Amendment and the Impeachment Clause. We should also focus on Section 3 of the 14th Amendment, which disqualifies those who engage in insurrection against the Constitution of the United States from holding office.
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BREAKING: We just won our appeal in our Emoluments Clause case against Donald Trump, on behalf of Trump's restaurant and hotel competitors. The Second Circuit panel unanimously reverses the district court's dismissal, across the board. Opinion coming shortly.
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This looks so bad. No prosecutor other than the Interim U.S. Attorney signed the motion. But he isn't actually admitted to the court. So they filed it under the bar number of his predecessor. Judge Sullivan will ask whoever shows up for the gov't: Who really wrote this thing?
NEW: On his request to drop the case against Michael Flynn, DC US Attorney Tim Shea signed his name above his ousted predecessor's bar ID number.
It's adding to questions about how the DOJ put together the reversal and why Shea alone signed the document.
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Remember Greg Gianforte, the Montana congressman who punched a reporter? He's being challenged by John Heenan--a consumer advocate, small businessman, and father of four who has a history of standing up to bullies on behalf of Montanans from all walks of life. Support him!
Democrat John Heenan not mincing words in bid to unseat freshman Rep. Greg Ganforte in race for Congress
#mtpol
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The Impeachment Clause also authorizes Congress to order "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." And there should be a high bar to concluding that an official has engaged in "insurrection." But it seems worth discussion.
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I'm proud to be part of an incredible legal team filing a lawsuit tomorrow morning against Donald Trump over Emoluments Clause violations.
Team of scholars/Supreme Court litigators/former White House lawyers intends to sue Pres Trump Monday re emoluments
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The energy of lawyers all across this country working together today to uphold the rule of law and our democracy is so inspiring. It reminds me of the weekend when the Muslim ban hit and everyone ran to the airports to help.
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This remarkable
@Fahrenthold
story--on the use of unsuspecting veterans to move cash from Saudi princes to Trump's pockets--shows exactly why we must enforce the Emoluments Clause now. Proud to be doing just that w/
@CREWcrew
@AGKarlRacine
@BrianFrosh
@CohenMilstein
@tribelaw
A month after
@realDonaldTrump
was elected, Saudi-funded lobbyists began reserving blocks of rooms at Trump's DC hotel. We estimate they reserved 500 rooms, in the middle of the busy weeks around Trump's inauguration. Total cost: more than $272K.
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As Justice Ginsburg said, the issue before the Supreme Court was how to let people "vote safely in the midst of a pandemic." The Court's stay made that impossible, forcing people to choose: "brave the polls, endangering their own and others’ safety" or "lose their right to vote."
Milwaukee’s health commissioner has now tied 40 coronavirus infections to the April 7 election.
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In the NY Times today, I argue w/
@brianbeutler
that a Civil War amendment to the Constitution--barring those who've "engaged in insurrection" from holding office--authorizes a broader response, one that goes beyond impeachment and beyond Trump alone.
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The Framers of the Constitution wrote the Emoluments Clause to ensure our elected leaders wouldn’t be corrupted by foreign governments. Today's historic victory in the Second Circuit gives us the opportunity to continue the fight to ensure their vision remains alive.
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Legal writing tip. When you seek a nationwide TRO on behalf of the U.S. govt to stop a publisher & bookstores from selling a book that's critical of the President, the first words of your argument shouldn't be: "The basis for preliminary relief in this matter is straightforward."
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This law review article provides a helpful framework for understanding Section 3:
And this person--an already-seated WV state legislator who took part in today's failed insurrection at the Capitol--seems like a potential test case:
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Good thread from
@EricLiptonNYT
on CREW's Emoluments Clause case against Donald Trump, which I'll be arguing in NYC on Wednesday.
Big day in court in NYC Wed for Pres Trump. Oral argument re motion to dismiss lawsuit alleging violation Constitution's emoluments clause
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We just won an awesome victory on appeal. The Federal Circuit agreed with us that federal courts have been charging people too much for access to electronic court records via PACER. Opinion here:
Background on the case here:
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The full Second Circuit court of appeals just left in place our victory over Donald Trump in the Emoluments Clauseitigation, allowing the case to move forward.
Divided US appeals court in New York leaves panel's emoluments ruling in place — keeping claims against Donald Trump alive. Order: Earlier:
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There's too much happening right now. But this deserves attention. Trump just installed a Bannon ally and right-wing propagandist to oversee Voice of America, which is no longer constrained by a bipartisan board. VoA can easily become another tool in the authoritarian's toolbox.
Congratulations to Michael Pack! Nobody has any idea what a big victory this is for America. Why? Because he is going to be running the VOICE OF AMERICA (
@VOANews
), and everything associated with it...
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Tyson managers took cash bets on how many workers would get Covid. We learned this from a lawsuit. The courts are critical for sunlight, compensation, and deterrence. The last thing Congress should be doing is giving immunity to the Tysons of the world.
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When is the asteroid coming?
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On Monday, I’ll be arguing before the U.S. Court of Appeals for the Federal Circuit, challenging the federal judiciary’s paywall for public court filings (aka PACER fees). This column by
@adamliptak
gives a good overview.
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The U.S. Supreme Court holds this morning that the Trump Administration's decision to rescind DACA was arbitrary and capricious under the APA. So DACA is reinstated!!!!!
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"He inherited the longest economic expansion in history and then, like everything else he inherited, he ran it into the ground.”
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"[T]he Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."
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I hereby declare victory in all of my pending cases, regardless of how they actually turn out.
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The Trump administration is using a private security company to detain migrant children at hotel chains, "creating a largely unregulated shadow system of detention and swift expulsions" without the legal safeguards intended to protect the most vulnerable.
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BREAKING: The Supreme Court has flatly rejected Texas's insane bid to overturn the lawful results of the 2020 presidential election. The case is over. Texas has no say how other states conduct their elections.
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Today’s historic settlement reflects a long-awaited recognition by the federal judiciary that it can no longer use PACER fees as a profit center to fund unrelated activities.
Read our settlement papers here:
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In plain English: today's SCOTUS decision means that families of people who are killed or injured by corporate negligence or misconduct (by mass market products like cars, for example) won't be blocked from the courthouse door--they can get access to justice where they live.
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The Framers were very worried about foreign corruption and interference. Hence the Emoluments Clause. Here is Hamilton in Federalist 22:
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If it wasn’t known before, it is now: The President of the United States appears to have committed obstruction of justice. There’s much noise and fog in the news, but this is a very significant story. (Also suggests a legal ethics violation by WH counsel and misconduct by AG.)
EXCLUSIVE: Mueller's Investigation reveals details of how Trump had WH counsel lobby Sessions not to recuse; how a WH lawyer tried to mislead the president about whether he could fire Comey; Preibus notes corroborate some of Comey's claims.
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I wrote too soon--it's not unanimous; apparently there is a dissent but I have not read it yet.
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Victory!! Thrilled by this morning’s order from the D.C. Circuit, halting the Trump Administration’s illegal attempted takeover of the Open Technology Fund, an independent nonprofit dedicated to free expression online.
DC Circuit: 'The government is hereby enjoined from taking any action to remove or replace any officers or directors of the Open Technology Fund.' Internet freedom nonprofit sued Trump-appointed head of US global media agency Order:
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SCOTUS just dismissed our Emoluments Clause litigation against Trump as moot. (We agreed it was now moot so that's no surprise.) It's disappointing that Trump ran out the clock. But I'm proud of the work we did to ensure the Constitution's anti-corruption norms weren't forgotten.
•Trump is out of office, so he can no longer be violating the emoluments clause.
•The COVID-related restrictions on abortion have been lifted, so those cases no longer present live controversies.
SCOTUS deftly avoided controversy by ducking these cases until they became moot.
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I was also wondering how they electronically filed the motion, since it lists only one lawyer who isn't admitted to the court. They filed it using the ECF account of one of the AUSAs assigned to the case, Jocelyn Ballantine, whose name conspicuously doesn't appear on the motion.
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President Trump--in his personal capacity, through private counsel--has moved to dismiss the Emoluments Clause lawsuit brought by D.C. & Maryland, arguing (among other things) that he's "absolutely immune." We just filed D.C. and Maryland's opposition:
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"Legal Harry Potter." Thanks,
@ratemyskyperoom
! Aiming for 9 3/4 but I'll happily take the 9 points for Gryffindor.
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This is such a strange signature block for an important court filing by the U.S. Department of Justice. I can't recall seeing anything like it before. All that white space really stands out.
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Read this. These two young children are U.S. citizens. They were detained for 20 hours at Dulles Airport, without food. In their own country
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Congress should use its power under the 14th Amendment to pass a law blocking the instigators and perpetrators of last week’s siege of the Capitol--including but not limited to Trump--from holding office ever again.
This would be a complement, not a substitute, for impeachment.
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So the only two courts to have addressed the Emoluments Clause claims against Trump on the merits--in this congressional case, and in our suit on behalf of D.C. & Maryland--have rejected Donald Trump's narrow reading of the clauses and have concluded that the cases may go forward
BREAKING: DDC Judge Sullivan holds that
@SenBlumenthal
@RepJerryNadler
& other Members of Congress have stated a claim against
@realDonaldTrump
for allegedly violating the Foreign Emoluments Clause. cc:
@MyConstitution
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Anyone interested in the U.S. Supreme Court should read this short thread. Whatever you think of the merits, it’s a big institutional shift for unsigned orders in non-argued cases to overtake the argument docket and to work major, contested changes in constitutional law overnight
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“The Pentagon also tacked on the choice of targeting Suleimani, mainly to make other options seem reasonable.
When Trump chose the option...top military officials, flabbergasted, were immediately alarmed about the prospect of Iranian retaliatory strikes”
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I wondered for a moment whether the filing violates the Local Rules because it lists only one attorney and that person isn't a member of the court. But there's an exception for federal gov't lawyers, provided they register and certify familiarity with the rules. LCvR 83.2(e)
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This is exactly why the Framers included the Domestic Emoluments Clause in our Constitution—to prevent an intolerable conflict of interest, in which the President can enrich himself at the public’s expense.
The President's company is asking for a break on its lease payments for its DC hotel because of the pandemic. The request is going to the landlord, which is the Trump administration. It's hard to imagine a clearer case of a conflict of interest.
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I hereby claim the Kingdom of Narnia and State of Utopia.
We have claimed, for Electoral Vote purposes, the Commonwealth of Pennsylvania (which won’t allow legal observers) the State of Georgia, and the State of North Carolina, each one of which has a BIG Trump lead. Additionally, we hereby claim the State of Michigan if, in fact,.....
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History lesson: Lafayette Square--the site of Monday's shameful, unprovoked attack on peaceful protesters for racial justice--was the site of a slave market. Hundreds of enslaved black people were bought and sold in the square across from the White House.
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Emoluments Clause litigation update: Last fall, I argued before the 2nd Circuit in NY on behalf of competitors of Trump's businesses. That appeal is still pending. This morning, we go before the 4th Circuit in Richmond as co-counsel to D.C. & Maryland AGs:
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Everyone's assuming Trump just made up a law requiring separation of children. The truth is worse. His DOJ is arguing in court that the Trafficking Victims Protections Reauthorization Act--a law designed to *protect* children--requires it. Excerpts from DOJ and ACLU briefs below.
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Donald Trump is now in breach of the conflict-of-interest clause in his lease of the Trump Hotel site in D.C.:
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Statement Of U.S. Attorney Geoffrey S. Berman On Announcement By Attorney General Barr
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A quick note on the scary seconds just before my SCOTUS argument this morning. We had tested all the technology carefully, working with the Court’s excellent, helpful staff. But just seconds before I was about to start talking, the line went completely dead. Silence!
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Govt's motion repeatedly characterizes President's authority as "unreviewable," says the harm here is judicial review. That may backfire.
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This is bonkers. There is no such law. To the contrary, the gov't has statutory and constitutional obligations to protect these children, which DOJ has at least partially acknowledged in the ACLU's litigation over this practice. Read the transcript here:
Put pressure on the Democrats to end the horrible law that separates children from there parents once they cross the Border into the U.S. Catch and Release, Lottery and Chain must also go with it and we MUST continue building the WALL! DEMOCRATS ARE PROTECTING MS-13 THUGS.
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Would RBG want you to descend into the depths of despair and fatalism right now? No, no she would not. As she herself said: "Fight for the things that you care about, but do it in a way that will lead others to join you."
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Does this have any basis in some bizarre legal opinion from the White House counsel's office or the Office of Legal Counsel? Or is it just the usual uninformed nonsense we've come to expect from Trump? I'm going with the latter.
For the purpose of creating conflict and confusion, some in the Fake News Media are saying that it is the Governors decision to open up the states, not that of the President of the United States & the Federal Government. Let it be fully understood that this is incorrect....
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The Framers of the 14th Amendment arrived at a consensus that we sadly find ourselves needing to enforce again: Those who swear an oath to defend our Constitution but then betray that sacred oath by participating in an insurrection cannot be permitted to hold public office again.
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In English v. Trump, the lawsuit over who is the Acting Director of the Consumer Financial Protection Bureau, here is our full legal memorandum in support of the motion for a temporary restraining order:
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Given this tweet, how much confidence should we have that he intends to "take care" that the law (the ACA) be "faithfully executed"?
ObamaCare will explode and we will all get together and piece together a great healthcare plan for THE PEOPLE. Do not worry!
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Even during the Civil War, the traitors never breached our Capitol. On Wednesday, they did. They paraded the Confederate battle flag through its halls, halted the electoral vote count, and upended the peaceful transfer of power with bloodshed.
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The world's oldest constitutional democracy, the United States of America, has just elected the first woman to a nationwide constitutional office--not to mention the first African-American woman, the first Asian American, and the first Indian American.
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We should all aspire to execute a plan as beautifully, as seamlessly, as effortlessly. I wish I could do any job as well as this.
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"[N]o person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatsoever, from any king, prince, or foreign state."
EXCLUSIVE: Kuwaiti embassy will host its 2018 independence day party at Trump's hotel
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I believe this is the first of the decisions to be explicitly grounded in an Establishment Clause violation.
Breaking: In new fed case, Judge Dolly Gee (CD Cal) requires the *return* of a person deported under the Trump EO:
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BREAKING: Following overwhelmingly bipartisan passage in the House this week, the U.S. Senate just passed the Ending Forced Arbitration for Sexual Assault and Harassment Act, banning the use of arbitration clauses that block justice for victims of assault and harassment.
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Here's the bottom line of our appellate victory in New York today in the Emoluments Clause case against Donald Trump:
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To be clear, I was just trying to raise Section 3 of the 14th Amendment as an issue for potential discussion--not coming to any conclusions. I suggest that people start by reading the linked article before jumping to any conclusions.
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Read Justice Kagan cut straight to the heart of what's really going on in today's decision on the constitutionality of the Consumer Financial Protection Bureau.
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It doesn't get much more 2017 than this. And if it does, I don't want to know about it.
Climate-denying talk radio host Trump picked for top science post now at center of Russia scandal
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Very impressive home run 3-0 victory by the State of Washington. The government's legal strategy has badly backfired.
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Let's be clear. The lawsuits Trump has filed are pure theater. They are not seriously intended to alter the outcome nor are they capable of doing so. This is about being able to *say* that there's litigation. And perhaps about being able to blame the courts when it's all over.
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Listen to what
@Sifill_LDF
says about what real patriotism means. See if you can watch this without tearing up just a little bit. America, for those of us who love it, is a project—always a work in progress.
“When [African Americans] peacefully protest… we’re called unpatriotic, when, in fact, it is… the unwillingness of too many Americans to work to make this country better that... accounts for the condition in which we find ourselves,” says Sherrilyn Ifill
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Appeals court denies Trump's rehearing request in emoluments suit
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"Our society and our democracy only work when we think not just about ourselves but each other."
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I’ll be on Rachel Maddow’s show in just a few minutes to discuss what I think the Constitution’s 14th Amendment has to say about the consequences for those who incited, directed, and carried out the insurrection at the Capitol.
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Proud to be representing Open Technology Fund, its board members, and board members of Radio Free Europe, Radio Free Asia, and Middle East Broadcasting Networks in a legal challenge to attempts to fire their leadership & politicize their operations.
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The Supreme Court (5-4) just gave employers a green light to strip workers of the right to band together & hold employers accountable for wage theft--even when everyone agrees it's unrealistic for workers to seek redress on their own. RBG's dissent calls this "egregiously wrong."
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Seems like a good time to mention that on Oct. 30 in NYC I'll be arguing the appeal in our legal challenge to Donald Trump's Emoluments Clause violations, on behalf of his hotel and restaurant competitors:
@brianbeutler
@CREWcrew
Hi, the president is engaging in a murder coverup to protect cash flows to his private businesses.
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An expert in humanitarian response, has scholarship in public health at Brown U. Barred from US, may move to Canada.
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When we filed the first Emoluments Clause case, right after the inauguration, Eric Trump called it "very, very sad" and President Trump (within moments, before he or his lawyers had time to read it) pronounced the suit "totally without merit." Things look pretty different now.
Team of scholars/Supreme Court litigators/former White House lawyers intends to sue Pres Trump Monday re emoluments
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I’m not sure if I have any big lessons here. These are weird times and everyone’s just figuring out how to navigate. I’m so grateful that we were able to work it out with the help of the talented and incredibly nice Court staff. And I’m really glad it didn’t throw us off course.
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Section 3 of the 14th Amendment disqualifies anyone who, having sworn to defend the Constitution, has "engaged in insurrection or rebellion against [it]." And Section 5 gives Congress the "power to enforce" Section 3 "by appropriate legislation." Congress should invoke both.
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"The plan is to have no plan, to let daily deaths [pile up, and] to create massive confusion about who is responsible ... [T]he plan is to default on public problem solving, and then prevent the public from understanding the consequences of that default."
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Federal courts use fees for online court records as a profit center, inhibiting access to justice and research. We just filed our appellate brief in a class action challenging the fees. Read it here: And stay tuned for interesting amicus briefs.
#PACERfees
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By now, you get the idea. What happened last week was a textbook insurrection. The mob attacked Congress to stop the constitutional process of counting of votes. For a time, the mob succeeded. The National Guard had to be called in to quell the violence and secure the Capitol.
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Our firm is proud to be representing SEIU, AFT, and other unions, a Wisconsin state senator, and Wisconsin taxpayers in this lawsuit, filed today, challenging the extraordinary power-grab legislation on separation-of-powers grounds under the Wisconsin Constitution.
Wisconsin legislators were upset with last fall's election, so they passed laws letting them evade the Governor's veto, control government litigation, and more. Our suit on behalf of Wisconsin workers explains why those unconstitutional laws cannot stand:
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Tomorrow, I’ll be arguing this case before the U.S. Supreme Court. It’s about access to justice for injured people. Does the Constitution bar a State’s courts from hearing a case brought by someone injured in that State by a product regularly sold within that State?
SCOTUS is, in theory, still going forward with April arguments. So, yesterday, we filed this brief on why companies shouldn't be able to force people injured by their products (cars, drugs, etc.) to travel thousands of miles to get in the courthouse door.
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"Why is this dude under the stairs?" 😂
Y’all know I’m ghetto so don’t be surprised at anything you here!!
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The federal government's most accomplished all-star expert on criminal law, Dreeben is going to work for Special Counsel Mueller part time.
New: Mueller enlists Michael Dreeben, top criminal law expert in SG’s office, for Russia probe from
@Tonymauro
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@joeldbloom
@brianbeutler
The filibuster is inapplicable to the Congressional Review Act repeal procedure that was used tonight. This was not legislation.
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Can Haberman or Swan (or anyone else) please get a little more specific here?
Sources who have gotten used to Trump’s eruptions over four years sound scared by what’s transpired in the past week when I’ve talked to them.
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This is so important. “The problem is that immunity doesn’t just shield the worst actors; it also punishes the best, by giving a competitive advantage to the businesses that decide to cut corners at the expense of worker and customer health and safety.”
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Tomorrow morning in NY, I’ll argue the appeal in our challenge to Trump's Emoluments Clause violations, on behalf of his hotel & restaurant competitors:
With
@CREWcrew
@CohenMilstein
@tribelaw
@NormEisen
@JoshuaMatz8
@jontaylor1
@ZephyrTeachout
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"This is a home run. There's nobody better than Rohit to take the helm of the CFPB at this critical moment, when Americans are hurting from overlapping crises. Rohit was there at the beginning and will keep the agency true to its founding mission."
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Huge congrats to Judge Nusrat Choudhury!!!
Among other things, she's the first Muslim woman to serve as a federal judge, and the first Bangladeshi-American.
The U.S. Senate just confirmed two accomplished ACLU civil rights lawyers to the bench within the space of two days!!
Confirmed, 50-49: Confirmation of Executive Calendar
#29
Nusrat Jahan Choudhury to be United States District Judge for the Eastern District of New York.
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"Rather than present evidence to explain the need for EO, Govt [takes] position that we must not review its decision at all. We disagree."
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Reminder: three emoluments lawsuits against Trump are moving forward. We just won a federal appeal in NY greenlighting our suit by his hotels' competitors; a fed'l appeals court just agreed to rehear our suit by Maryland and D.C.; and there's a third suit by members of Congress
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The headline & framing focus on a single alleged leak in Hobby Lobby. But the reporters & editors at the Times don't seem to understand that it's the rich details in the body of their story--about a concerted campaign to influence the Justices--that's ultimately more newsworthy.
By any measure, this morning's story is a bombshell that's likely to fundamentally alter public conversation about the Supreme Court. Some of the details seem hard to brush aside. And, if true, they're deeply troubling and shocking--even to those who know the institution well.
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